Case: 5:20-cv-438 As of: 06/19/2020 10:49 PM CDT 1 of 15
APPEAL,STAYED
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:20−cv−00438−FB

Texas Democratic Party et al v. Abbott, Governor of Texas et al Assigned to: Judge Fred Biery Related Case: 5:20−cv−00527−OLG
Case in other court: 5CCA, 20−50407(Doc. 91 & 92) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/07/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Texas Democratic Party

represented by K. Scott Brazil Brazil & Dunn 13231 Champion Forest Dr. Suite 406 Houston, TX 77069 (281)580−6310 Fax: (281)580−6362 Email: scott@brazilanddunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin Anthony Golando The Law Office of Martin Golando, PLLC 405 N. St. Mary's Street, Suite 700 San Antonio, TX 78205 210−892−8543 Fax: 210−405−6772 Email: martin.golando@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Alan Grigg Law Offices of Dicky Grigg, PC 4407 Bee Caves Road Building 1, Suite 111 Austin, TX 78746 (512) 474−6061 Fax: 512/582−8560 Email: dicky@grigg−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Leslie Meyerhoff Texas Democratic Party 314 E. Highland Mall Blvd. #508 Austin, TX 78752 512−478−9800 Email: rmeyerhoff@txdemocrats.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Chad W. Dunn Brazil & Dunn 4407 Bee Caves Road Building 1, Suite 111 Austin, TX 78746 512/717−9822 Fax: 512/515−9355 Email: chad@brazilanddunn.com ATTORNEY TO BE NOTICED

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Plaintiff Gilberto Hinojosa, Chair of the Texas Democratic Party
Plaintiff Joseph Daniel Cascino
Plaintiff Shanda Marie Sansing

represented by K. Scott Brazil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Alan Grigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Leslie Meyerhoff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED
represented by K. Scott Brazil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Alan Grigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Leslie Meyerhoff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED
represented by K. Scott Brazil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:20-cv-438 As of: 06/19/2020 10:49 PM CDT 3 of 15

Plaintiff Brenda Li Garcia
V. Defendant Greg Abbott, Governor of Texas

Richard Alan Grigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Leslie Meyerhoff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED
represented by K. Scott Brazil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Alan Grigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Leslie Meyerhoff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED
represented by Anne Marie Mackin Office of the Attorney General 300 West 15th Street General Litigation−11th Floor Austin, TX 78701 512−936−0161 Fax: 512−320−0667 Email: anna.mackin@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cory A. Scanlon Office of the Attorney General P.O. BOx 12548 Capitol Station Austin, TX 78711−2548 512−463−2120 Fax: 512−320−0667

Case: 5:20-cv-438 As of: 06/19/2020 10:49 PM CDT 4 of 15

Defendant Ruth Hughs, Texas Secretary of State
Defendant Dana DeBeauvoir, Travis County Clerk

Email: cory.scanlon@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Abrams Office of the Attorney General of Texas PO Box 12548, General Lit (019) Capitol Station Austin, TX 78701 512−463−2120 Fax: 512−320−0667 Email: michael.abrams@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Marie Mackin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cory A. Scanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew M. Williams County Attorney, Travis County PO Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512−854−4808 Email: drew.williams@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia W. Veidt Travis County Attorney's Office PO Box 1748 Austin, TX 78767 (512) 854−2911 Fax: (512) 854−9316 Email: cynthia.veidt@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie W. Dippel Travis County Attorney's Office P.O. Box 1748 314 W. 11th Street Room 500 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: leslie.dippel@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:20-cv-438 As of: 06/19/2020 10:49 PM CDT 5 of 15

Defendant Jacquelyn F. Callanen, Bexar County Elections Administrator
Defendant Ken Paxton Texas Attorney General
Amicus The Republican Party of Texas
Amicus Mexican American Legislative Caucus

Sharon Talley Travis County Attorney's Office PO Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: sharon.talley@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherine Elizabeth Thomas Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: sherine.thomas@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert D. Green Bexar County District Attorney Civil Division 101 W. Nueva 7th Floor San Antonio, TX 78205 210−335−2146 Email: robert.green@bexar.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Marie Mackin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cory A. Scanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dallin B. Holt Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive, Suite 100 Warrenton, VA 20186 540−341−8808 Email: dholt@hvjt.law LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

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Amicus Harris County
Amicus Landmark Legal Foundation
Amicus Public Interest Legal Foundation
Movant League of United Latin American Citizens (LULAC)
Movant Texas League of United Latin American Citizens

Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr San Antonio, TX 78209 210−392−2856 Email: garzpalm@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan L. Hays Law Office of Susan Hays, P.C. P.O. Box 41647 Austin, TX 78704 214/557−4819 Fax: 214/432−8273 Email: hayslaw@me.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andy Taylor Andy Taylor & Associates, PC 2628 Highway 36 South, #288 Brenham, TX 77833 713−222−1817 Fax: 713/222−1855 Email: ataylor@andytaylorlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andy Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Luis Roberto Vera , Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad Suite 1325 San Antonio, TX 78205−2260 (210) 225−3300 Fax: 210/225−2060 Email: lrvlaw@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Luis Roberto Vera , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/07/2020

# Docket Text
1 COMPLAINT ( Filing fee $ 400 receipt number 0542−13432334). No Summons requested at this time, filed by Joseph Daniel Cascino, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party, Brenda Li

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04/07/2020 04/07/2020 04/20/2020 04/20/2020 04/20/2020 04/20/2020 04/20/2020 04/20/2020 04/21/2020 04/29/2020 04/29/2020
04/29/2020 04/29/2020 04/29/2020 05/03/2020

Garcia. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B)(Dunn, Chad) (Entered: 04/07/2020)
Case assigned to Judge Fred Biery. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (wg) (Entered: 04/07/2020)
If ordered by the court, all referrals will be assigned to Magistrate Judge Farrer (wg) (Entered: 04/07/2020)
2 REQUEST FOR ISSUANCE OF SUMMONS by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Dunn, Chad) (Entered: 04/20/2020)
3 ***DUPLICATE SUMMONS REQUEST FOR RUTH HUGHES ***REQUEST FOR ISSUANCE OF SUMMONS by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Dunn, Chad) Modified on 4/20/2020 (wg). (Entered: 04/20/2020)
4 REQUEST FOR ISSUANCE OF SUMMONS by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Dunn, Chad) (Entered: 04/20/2020)
5 ***NOTIFIED COUNSEL, DUPLICATE FILING OF REQUESTED SUMMONS ***DEFICIENCY NOTICE: re 3 Request for Issuance of Summons, (wg) (Entered: 04/20/2020)
6 Summons Issued as to Dana DeBeauvoir, Travis County Clerk, Ruth Hughs, Texas Secretary of State. (wg) (Entered: 04/20/2020)
7 REQUEST FOR ISSUANCE OF SUMMONS by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Dunn, Chad) (Entered: 04/20/2020)
8 Summons Issued as to Jacquelyn F. Callanen, Bexar County Elections Administrator. (wg) (Entered: 04/21/2020)
9 AMENDED COMPLAINT against All Defendants amending 1 Complaint,., filed by Joseph Daniel Cascino, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party, Brenda Li Garcia.(Dunn, Chad) (Entered: 04/29/2020)
10 MOTION for Preliminary Injunction by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Attachments: # 1 Exhibit 1 State Court Hearing Record, # 2 Exhibit 2 OAG Press Release, # 3 Exhibit 3 State of Texas' Plea to the Jurisdiction, # 4 Exhibit 4 Court Order on TI, # 5 Proposed Order)(Dunn, Chad) (Entered: 04/29/2020)
11 MOTION for Leave to Exceed Page Limitation by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Attachments: # 1 Proposed Order)(Dunn, Chad) (Entered: 04/29/2020)
12 REQUEST FOR ISSUANCE OF SUMMONS by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Dunn, Chad) (Entered: 04/29/2020)
13 Summons Reissued with Amended Complaint as to (Ken Paxton, Texas Atty. General)Greg Abbott, Governor of Texas, Jacquelyn F. Callanen, Bexar County Elections Administrator, Dana DeBeauvoir, Travis County Clerk, Ruth Hughs, Texas Secretary of State. (wg) (Entered: 04/29/2020)
15 ORDER SETTING HEARING re 10 MOTION for Preliminary Injunction filed by Brenda Li Garcia, Shanda Marie Sansing, Joseph Daniel Cascino, Gilberto Hinojosa, Chair of the Texas Democratic Party, Texas Democratic Party, ( Motion Hearing set for 5/15/2020 09:00 AM before Judge Fred Biery,)The Clerk of this Court is DIRECTED to send a copy of this Order by certified mail return receipt requested to The Honorable Greg Abbott, Governor of the State of Texas; The Honorable Ken

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05/04/2020 05/04/2020 05/05/2020
05/05/2020
05/05/2020
05/05/2020 05/06/2020
05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/07/2020 05/07/2020

Paxton, Texas Attorney General; The Honorable Ruth Hughes, Texas Secretary of State; The Honorable Dana Debeauvoir, Travis County Clerk; and Bexar County Elections Administrator Jacquelyn F. Callanen. Signed by Judge Fred Biery. (wg) (Entered: 05/04/2020)
14 ORDER GRANTING 11 Motion for Leave to File Excess Pages Signed by Judge Fred Biery. (wg) (Entered: 05/04/2020)
16 Certified Mail Receipt of 15 Order,,, Set Motion Hearings,, (wg) (Entered: 05/04/2020)
17 NOTICE of Attorney Appearance by Michael Abrams on behalf of Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. Attorney Michael Abrams added to party Greg Abbott, Governor of Texas(pty:dft), Attorney Michael Abrams added to party Ruth Hughs, Texas Secretary of State(pty:dft), Attorney Michael Abrams added to party Ken Paxton(pty:dft) (Abrams, Michael) (Entered: 05/05/2020)
18 NOTICE of Attorney Appearance by Anne Marie Mackin on behalf of Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. Attorney Anne Marie Mackin added to party Greg Abbott, Governor of Texas(pty:dft), Attorney Anne Marie Mackin added to party Ruth Hughs, Texas Secretary of State(pty:dft), Attorney Anne Marie Mackin added to party Ken Paxton(pty:dft) (Mackin, Anne) (Entered: 05/05/2020)
19 NOTICE of Attorney Appearance by Cory A. Scanlon on behalf of Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. Attorney Cory A. Scanlon added to party Greg Abbott, Governor of Texas(pty:dft), Attorney Cory A. Scanlon added to party Ruth Hughs, Texas Secretary of State(pty:dft), Attorney Cory A. Scanlon added to party Ken Paxton(pty:dft) (Scanlon, Cory) (Entered: 05/05/2020)
20 MOTION to Appear Pro Hac Vice by Chad W. Dunn (Rob Meyerhoff for TDP) ( Filing fee $ 100 receipt number 0542−13535043) by on behalf of Texas Democratic Party. (Dunn, Chad) (Entered: 05/05/2020)
21 ORDER GRANTING 20 Motion to Appear Pro Hac Vice (Robert L. Meyerhoff). Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Fred Biery. (wg) (Entered: 05/06/2020)
22 NOTICE of Attorney Appearance by Leslie W. Dippel on behalf of Dana DeBeauvoir, Travis County Clerk. Attorney Leslie W. Dippel added to party Dana DeBeauvoir, Travis County Clerk(pty:dft) (Dippel, Leslie) (Entered: 05/06/2020)
23 NOTICE of Attorney Appearance by Sherine Elizabeth Thomas on behalf of Dana DeBeauvoir, Travis County Clerk. Attorney Sherine Elizabeth Thomas added to party Dana DeBeauvoir, Travis County Clerk(pty:dft) (Thomas, Sherine) (Entered: 05/06/2020)
24 NOTICE of Attorney Appearance by Cynthia W. Veidt on behalf of Dana DeBeauvoir, Travis County Clerk. Attorney Cynthia W. Veidt added to party Dana DeBeauvoir, Travis County Clerk(pty:dft) (Veidt, Cynthia) (Entered: 05/06/2020)
25 NOTICE of Attorney Appearance by Andrew M. Williams on behalf of Dana DeBeauvoir, Travis County Clerk. Attorney Andrew M. Williams added to party Dana DeBeauvoir, Travis County Clerk(pty:dft) (Williams, Andrew) (Entered: 05/06/2020)
26 NOTICE of Attorney Appearance by Sharon Talley on behalf of Dana DeBeauvoir, Travis County Clerk. Attorney Sharon Talley added to party Dana DeBeauvoir, Travis County Clerk(pty:dft) (Talley, Sharon) (Entered: 05/06/2020)
27 Recd. Certified Mail Receipt Acknowledgment Card as to Ms. Jacquelyn F. Callanen 15 Order, Set Motion Hearings,, (wg) (Entered: 05/07/2020)
28 NOTICE of Attorney Appearance by Robert D. Green on behalf of Jacquelyn F. Callanen, Bexar County Elections Administrator. Attorney Robert D. Green added to party Jacquelyn F. Callanen, Bexar County Elections Administrator(pty:dft) (Green,

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05/11/2020 05/11/2020 05/11/2020 05/11/2020 05/11/2020 05/11/2020 05/11/2020 05/12/2020 05/12/2020
05/12/2020 05/12/2020
05/13/2020 05/13/2020 05/13/2020 05/13/2020

Robert) (Entered: 05/07/2020)
29 Remark: Recd. Executed Acknowledgment Card dated 5/7/2020 as to Doc #15. (wg) (Entered: 05/11/2020)
30 MOTION to Intervene by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens. (Attachments: # 1 Proposed Order, # 2 Exhibit Intervenors Complaint)(wg) (Entered: 05/11/2020)
31 MOTION to Appear Pro Hac Vice (Jonathan Diaz) ( Filing fee $ 100 receipt number 500054194) by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens. (Attachments: # 1 Exhibit Receipt Fee Paid)(wg) (Entered: 05/11/2020)
32 MOTION to Appear Pro Hac Vice ( Filing fee $ 100 receipt number 500054195) by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens. (Attachments: # 1 Supplement Pro Hac Vice Fee)(wg) (Entered: 05/11/2020)
33 MOTION to Appear Pro Hac Vice (Molly Danahy) ( Filing fee $ 100 receipt number 500054196) by Texas League of United Latin American Citizens. (Attachments: # 1 Supplement pro Hac vice Fee)(wg) (Entered: 05/11/2020)
34 MOTION to Appear Pro Hac Vice (Danielle Lang) ( Filing fee $ 100 receipt number 500054197) by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens. (Attachments: # 1 Supplement Pro Hac Vice Fee)(wg) (Entered: 05/11/2020)
35 MOTION to Appear Pro Hac Vice (Robert Weiner) ( Filing fee $ 100 receipt number 500054198) by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens. (Attachments: # 1 Supplement pro Hac Vice fee)(wg) (Entered: 05/11/2020)
36 ORDER SETTING TIME LIMITS FOR PRELIMINARY INJUNCTION HEARING re 15 Order,,, Set Motion Hearings,,. Signed by Judge Fred Biery. (wg) (Entered: 05/12/2020)
37 RESPONSE to Motion, filed by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton, re 30 MOTION to Intervene filed by Movant League of United Latin American Citizens (LULAC), Movant Texas League of United Latin American Citizens (Attachments: # 1 Proposed Order)(Abrams, Michael) (Entered: 05/12/2020)
38 Unopposed MOTION for Leave to Exceed Page Limitation by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. (Attachments: # 1 Proposed Order)(Abrams, Michael) (Entered: 05/12/2020)
39 RESPONSE to Motion, filed by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton, re 10 MOTION for Preliminary Injunction filed by Plaintiff Brenda Li Garcia, Plaintiff Shanda Marie Sansing, Plaintiff Joseph Daniel Cascino, Plaintiff Gilberto Hinojosa, Chair of the Texas Democratic Party, Plaintiff Texas Democratic Party (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Abrams, Michael) (Entered: 05/12/2020)
40 ORDER DENYING 30 Motion to Intervene filed by League of United Latin American Citizens, and Texas League of United Latin American Citizens. Signed by Judge Fred Biery. (wg) (Entered: 05/13/2020)
41 MOTION for Leave to File Amicus BriefUnopposed by Dallin B. Holt. by The Republican Party of Texas. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Holt, Dallin) (Entered: 05/13/2020)
42 MOTION for leave to file amicus by Mexican American Legislative Caucus. (Attachments: # 1 Brief, # 2 Proposed Order)(Garza, Jose) (Entered: 05/13/2020)
43 ORDER GRANTING re 42 MOTION for leave to file amicus filed by Mexican American Legislative Caucus. Signed by Judge Fred Biery. (wg) (Entered: 05/13/2020)

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05/13/2020 05/13/2020 05/13/2020 05/13/2020 05/13/2020 05/14/2020
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05/14/2020 05/14/2020 05/14/2020

44 AMICI CURIAE BRIEF regarding 10 MOTION for Preliminary Injunction by Mexican American Legislative Caucus. (wg) (Entered: 05/13/2020)
45 ORDER GRANTING 38 Motion for Leave to File Excess Pages Signed by Judge Fred Biery. (wg) (Entered: 05/13/2020)
46 ORDER DISMISSING AS MOOT 31 Motion to Appear Pro Hac Vice ; 32 Motion to Appear Pro Hac Vice ; 33 Motion to Appear Pro Hac Vice ; 34 Motion to Appear Pro Hac Vice ; 35 Motion to Appear Pro Hac Vice Signed by Judge Fred Biery. (wg) (Entered: 05/13/2020)
47 ORDER GRANTING 41 Motion for Leave to File Amicus Brief Signed by Judge Fred Biery. (wg) (Entered: 05/13/2020)
48 REPUBLICAN PARTY BRIEF AMICUS CURIE in Opposition, regarding 10 Plaintiff's Motion for Preliminary Injunction by The Republican Party of Texas. (wg) (Entered: 05/13/2020)
49 RESPONSE to Motion, filed by Jacquelyn F. Callanen, Bexar County Elections Administrator, re 10 MOTION for Preliminary Injunction filed by Plaintiff Brenda Li Garcia, Plaintiff Shanda Marie Sansing, Plaintiff Joseph Daniel Cascino, Plaintiff Gilberto Hinojosa, Chair of the Texas Democratic Party, Plaintiff Texas Democratic Party (Attachments: # 1 Exhibit Bexar County Criminal District Attorney Opinion)(Green, Robert) (Entered: 05/14/2020)
50 Proposed Findings of Fact by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Abrams, Michael) (Entered: 05/14/2020)
51 Unopposed MOTION for Leave to File Amicus Brieffor Harris County, Texas by Susan Hays. by Harris County. (Attachments: # 1 Exhibit A−Amicus Brief, # 2 Appendix Appendix to Amicus, # 3 Proposed Order Proposed Order)(Hays, Susan) (Entered: 05/14/2020)
52 Proposed Findings of Fact by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Dunn, Chad) (Entered: 05/14/2020)
53 NOTICE of Filing Exhibit List by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Dunn, Chad) (Entered: 05/14/2020)
54 NOTICE of Filing Preliminary Injunction Proposed Order by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Dunn, Chad) (Entered: 05/14/2020)
55 Unopposed MOTION for Leave to Exceed Page Limitation by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Attachments: # 1 Proposed Order)(Dunn, Chad) (Entered: 05/14/2020)
56 REPLY to Response to Motion, filed by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party, re 10 MOTION for Preliminary Injunction filed by Plaintiff Brenda Li Garcia, Plaintiff Shanda Marie Sansing, Plaintiff Joseph Daniel Cascino, Plaintiff Gilberto Hinojosa, Chair of the Texas Democratic Party, Plaintiff Texas Democratic Party (Dunn, Chad) (Entered: 05/14/2020)
57 MOTION for Leave to File Amici Curiae Brief by Landmark Legal Foundation, Public Interest Legal Foundation. (Attachments: # 1 Brief Amicus Brief, # 2 Proposed Order Proposed Order)(Taylor, Andy) (Entered: 05/14/2020)
58 NOTICE of Filing Exhibit 1 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 1)(Dunn, Chad) (Entered: 05/14/2020)
59 NOTICE of Filing Exhibit 2 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 2)(Dunn, Chad) (Entered: 05/14/2020)

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05/14/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020
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05/14/2020
05/14/2020 05/14/2020

60 NOTICE of Filing Exhibit 3 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 3)(Dunn, Chad) (Entered: 05/14/2020)
61 NOTICE of Filing Exhibit 4 and Exhibit 5 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 4, # 2 Exhibit 5)(Dunn, Chad) (Entered: 05/14/2020)
62 ORDER GRANTING 51 Motion of Harris County for Leave to File Amicus Brief Signed by Judge Fred Biery. (rg) (Entered: 05/14/2020)
63 NOTICE of Filing Exhibit 6, Exhibit 7, Exhibit 8, Exhibit 9 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9)(Dunn, Chad) (Entered: 05/14/2020)
64 NOTICE of Filing Exhibit 10, Exhibit 11, Exhibit 12 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12)(Dunn, Chad) (Entered: 05/14/2020)
65 NOTICE of Filing Exhibit 13, Exhibit 14, Exhibit 15 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15)(Dunn, Chad) (Entered: 05/14/2020)
66 AMICUS BRIEF in support of plaintiff's 10 MOTION for Preliminary Injunction by Harris County. (Attachments: # 1 Appendix)(rg) (Entered: 05/14/2020)
67 NOTICE of Filing Exhibit 16, Exhibit 17, Exhibit 18, Exhibit 19, Exhibit 20 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19, # 5 Exhibit 20)(Dunn, Chad) (Entered: 05/14/2020)
68 NOTICE of Filing Exhibit 21, Exhibit 22 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 21, # 2 Exhibit 22)(Dunn, Chad) (Entered: 05/14/2020)
69 NOTICE of Filing Notice of Supplemental Authority by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Brazil, K.) (Entered: 05/14/2020)
70 ORDER GRANTING 57 Motion leave to file Amicus Curiae Brief of Public Interest Legal Foundation and Landmark Legal Foundation. Signed by Judge Fred Biery. (rg) (Entered: 05/14/2020)
71 NOTICE of Filing Exhibit 23, Exhibit 24, Exhibit 25, Exhibit 26, Exhibit 27 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 23, # 2 Exhibit 24, # 3 Exhibit 25, # 4 Exhibit 26, # 5 Exhibit 27)(Dunn, Chad) (Entered: 05/14/2020)
72 NOTICE of Filing Exhibit 28, Exhibit 29, Exhibit 30, Exhibit 31, Exhibit 32 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 28, # 2 Exhibit 29, # 3 Exhibit 30, # 4 Exhibit 31, # 5 Exhibit 32)(Dunn, Chad) (Entered: 05/14/2020)
73 AMICI CURIAE BRIEF in opposition to plaintiff's 10 MOTION for Preliminary Injunction by Landmark Legal Foundation, Public Interest Legal Foundation. (rg) (Entered: 05/14/2020)
74 NOTICE of State Court Order by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton (Attachments: # 1 State Court Order and Dissent)(Abrams, Michael) (Entered: 05/14/2020)

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75 NOTICE of Filing Exhibit 34, Exhibit 35, Exhibit 36, Exhibit 37, Exhibit 38 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 34, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38)(Dunn, Chad) (Entered: 05/14/2020)
76 NOTICE of Filing Exhibit 39, Exhibit 40, Exhibit 41 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 39, # 2 Exhibit 40, # 3 Exhibit 41)(Dunn, Chad) (Entered: 05/14/2020)
77 NOTICE of Filing Exhibit 42, Exhibit 43, Exhibit 44, Exhibit 45 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 42, # 2 Exhibit 43, # 3 Exhibit 44, # 4 Exhibit 45)(Dunn, Chad) (Entered: 05/14/2020)
78 NOTICE of Filing Exhibit 46, Exhibit 47, Exhibit 48, Exhibit 49 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 46, # 2 Exhibit 47, # 3 Exhibit 48, # 4 Exhibit 49)(Dunn, Chad) (Entered: 05/14/2020)
79 NOTICE of Filing Exhibit 51, Exhibit 52, Exhibit 53, Exhibit 54, Exhibit 55 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 51, # 2 Exhibit 52, # 3 Exhibit 53, # 4 Exhibit 54, # 5 Exhibit 55)(Dunn, Chad) (Entered: 05/14/2020)
80 NOTICE of Filing Exhibit 50 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 50)(Dunn, Chad) (Entered: 05/14/2020)
81 NOTICE of Filing Exhibit 33 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Attachments: # 1 Exhibit 33)(Dunn, Chad) (Entered: 05/14/2020)
83 Recd. Acknowledgment Card Executed on Gov. Gregg Abbott. (wg) (Entered: 05/15/2020)
82 ORDER GRANTING 55 Motion for Leave to File Excess Pages Signed by Judge Fred Biery. (wg) (Entered: 05/15/2020)
84 TRANSCRIPT REQUEST by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party for proceedings held on May 15, 2020. Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter: Chris Poage. (Dunn, Chad) (Entered: 05/15/2020)
89 Minute Entry for proceedings held before Judge Fred Biery: Taken under Advisement, written Order forthcoming.Motion Hearing held on 5/15/2020 re 10 MOTION for Preliminary Injunction filed by Brenda Li Garcia, Shanda Marie Sansing, Joseph Daniel Cascino, Gilberto Hinojosa, Chair of the Texas Democratic Party, Texas Democratic Party (Minute entry documents are not available electronically.). (Court Reporter Chris Poage.)(wg) (Entered: 05/18/2020)
85 Transcript filed of Proceedings held on 5/15/2020, Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter/Transcriber: Chris Poage, Telephone number: 210−244−5036 Email: chris_poage@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 6/8/2020, Redacted Transcript Deadline set for 6/16/2020, Release of Transcript Restriction set for 8/14/2020, (cp) (Entered: 05/16/2020)
86 NOTICE State Defendants' Notice of State Court Order by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton (Attachments: # 1 Exhibit

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A)(Abrams, Michael) (Entered: 05/18/2020)
87 NOTICE of Filing Second Revised Proposed Order on Preliminary Injunction 10 filed by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party (Dunn, Chad) (Entered: 05/18/2020)
88 ADVISORY TO THE COURT by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Attachments: # 1 Texas Supreme Court Stay Order Issued, # 2 Texas Supreme Court Setting Oral Argument, # 3 NBER Whitepaper (May 2020))(Dunn, Chad) (Entered: 05/18/2020)
90 ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION 10 Motion for Preliminary Injunction. IT IS FURTHER ORDERED that this Order shall remain in full force and effect until a Judgment is issued in this matter or until such time as the pandemic circumstances giving rise to this Order subside. IT IS FINALLY ORDERED that defendants may petition this Court, upon giving notice and opportunity to be heard to plaintiffs, that the Order should be dissolved for any reason, including that the state courts have resolved issues of a matter of state law that render this injunction unnecessary or because the pandemic circumstances giving rise to it have subsided. Signed by Judge Fred Biery. (wg) (Main Document 90 replaced on 5/20/2020) (kc). Modified on 5/20/2020 to replace unreadable exhibit(kc). (Entered: 05/19/2020)
91 Appeal of Order entered by District Judge 90 by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. ( Filing fee $ 505 receipt number 0542−13587165) (Abrams, Michael) (Entered: 05/19/2020)
92 NOTICE OF APPEAL following 91 Notice of Appeal (E−Filed) by Greg Abbott, Governor of Texas, Jacquelyn F. Callanen, Bexar County Elections Administrator, Dana DeBeauvoir, Travis County Clerk, Ruth Hughs, Texas Secretary of State, Ken Paxton. Filing fee $ 505, receipt number 0542−13587165. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out a (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (wg) (Entered: 05/20/2020)
Certification of the Electronic Record on Appeal in USCA #20−50407 has been accepted by the 5th Circuit. re 91 92 Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (dtg) (Entered: 05/20/2020)
93 MOTION to Re−urge re 40 Order on Motion to Intervene by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens. (Attachments: # 1 Proposed Order)(Vera, Luis) (Entered: 05/20/2020)
94 ORDER of USCA (certified copy). re 91 92 Notice of Appeal.***IT IS ORDERED that the motion of appellants for stay pending appeal is temporarily held in abeyance pending further order by this motions panel. The appellees are directed to respond to the motion for stay by 3:00pm Thursday May 21, 2020.IT IS ORDERED that the alternative motion of appellants for a temporary stay pending appeal while the court considers the motion for stay pending appeal is GRANTED.*** (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 05/21/2020)
95 MOTION to Dismiss by Jacquelyn F. Callanen, Bexar County Elections Administrator. (Green, Robert) (Entered: 05/21/2020)
96 EXHIBIT RECEIPT, by Greg Abbott, Governor of Texas, Jacquelyn F. Callanen, Bexar County Elections Administrator, Joseph Daniel Cascino, Dana DeBeauvoir, Travis County Clerk, Brenda Li Garcia, Harris County, Gilberto Hinojosa, Chair of the Texas Democratic Party, Ruth Hughs, Texas Secretary of State, Landmark Legal Foundation, League of United Latin American Citizens (LULAC), Mexican American Legislative Caucus, Ken Paxton, Public Interest Legal Foundation, Shanda Marie Sansing, Texas Democratic Party, Texas League of United Latin American Citizens, The Republican Party of Texas. (wg) (Entered: 05/21/2020)

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97 Exhibit List by Greg Abbott, Governor of Texas, Jacquelyn F. Callanen, Bexar County Elections Administrator, Dana DeBeauvoir, Travis County Clerk, Ruth Hughs, Texas Secretary of State, Ken Paxton.. (wg) (Entered: 05/21/2020)
98 EXHIBIT RECEIPT by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton. (wg) (Entered: 05/21/2020)
99 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party.**P−1** (Attachments: # 1 P−2, # 2 P−3, # 3 P−4, # 4 P−5, # 5 P−6, # 6 P−7, # 7 P−8, # 8 P−9, # 9 P−10)(dtg) (Entered: 05/21/2020)
100 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party.**Ex. 11** (Attachments: # 1 Ex. 12, # 2 Ex. 13, # 3 Ex. 14, # 4 Ex. 15, # 5 Ex. 16, # 6 Ex. 17, # 7 Ex. 18, # 8 Ex. 19, # 9 Ex. 20)(dtg) (Entered: 05/21/2020)
101 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party.**Ex. 21** (Attachments: # 1 Ex. 22)(dtg) (Entered: 05/21/2020)
102 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party.**Ex. 23** (Attachments: # 1 Ex. 24, # 2 Ex. 25, # 3 Ex. 26, # 4 Ex. 27, # 5 Ex. 28, # 6 Ex. 29, # 7 Ex. 30)(dtg) (Entered: 05/21/2020)
103 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party.**Ex. 31** (Attachments: # 1 Ex. 32, # 2 Ex. 33, # 3 Ex.34, # 4 Ex. 35, # 5 Ex. 36, # 6 Ex. 37, # 7 Ex. 38, # 8 Ex. 39, # 9 Ex. 40)(dtg) (Entered: 05/21/2020)
104 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party.**Ex. 41** (Attachments: # 1 Ex. 42, # 2 Ex. 43, # 3 Ex. 44, # 4 Ex.45, # 5 Ex. 46, # 6 Ex. 47, # 7 Ex. 48, # 8 Ex. 49, # 9 Ex. 50)(dtg) (Entered: 05/21/2020)
105 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. **Ex. 51** (Attachments: # 1 Ex. 52, # 2 Ex. 53, # 3 Ex. 54, # 4 Ex. 55)(dtg) (Entered: 05/21/2020)
106 EXHIBITS TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION HEARING OF 5/15/2020 by Greg Abbott, Governor of Texas, Jacquelyn F. Callanen, Bexar County Elections Administrator, Dana DeBeauvoir, Travis County Clerk, Ruth Hughs, Texas Secretary of State, Ken Paxton. (Attachments: # 1 39.1, Exhibit A, # 2 39.2, Exhibit B, # 3 39.3, Exhibit C, # 4 39.4, Exhibit D, # 5 50.1, Exhibit A, # 6 50.2, Exhibit B, # 7 50.3, Exhibit C)(dtg) (Entered: 05/21/2020)
107 MOTION to Dismiss Defendant Ruth Hugh's Motion to Dismiss by Ruth Hughs, Texas Secretary of State. (Abrams, Michael) (Entered: 05/21/2020)
108 RESPONSE to Motion, filed by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party, re 93 MOTION to Re−urge re 40 Order on Motion to Intervene filed by Movant League of United Latin American Citizens (LULAC), Movant Texas League of United Latin American Citizens (Dunn, Chad) (Entered: 05/22/2020)

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Certification of the Electronic Record on Appeal (Supplemental #1 record) in USCA #20−50407 has been accepted by the 5th Circuit. re 91 92 Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (dtg) (Entered: 05/22/2020)
109 Defendant Dana DeBeauvoir's Original Answer to Plaintiffs' First Amended Complaint ANSWER to 9 Amended Complaint by Dana DeBeauvoir, Travis County Clerk.(Veidt, Cynthia) (Entered: 05/22/2020)
110 TRANSCRIPT REQUEST by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton for dates of May 15, 2020. Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter: Chris Poage.. (Abrams, Michael) Modified TEXT on 5/27/2020 (dtg).***TRANSCRIPT IS ALREADY ON FILE WITH CLERK'S OFFICE, SEE DOCKET ENTRY #85.*** (Entered: 05/26/2020)
111 DEFENDANT'S RESPONSE to Motion, filed by Greg Abbott, Governor of Texas, Ruth Hughs, Texas Secretary of State, Ken Paxton, re 93 MOTION to Re−urge re 40 Order on Motion to Intervene filed by Movant League of United Latin American Citizens (LULAC), Movant Texas League of United Latin American Citizens (Attachments: # 1 Proposed Order)(Abrams, Michael) (Entered: 05/27/2020)
112 DEFENDANT'S MOTION to Dismiss by Ken Paxton. (Abrams, Michael) (Entered: 05/27/2020)
115 ORDER of USCA (certified copy). re 92 Notice of Appeal.***IT IS ORDERED that the opposed motion of Heathcare Professionals to file a brief as amici curiae is GRANTED. IT IS FURTHER ORDERED that the opposed motion of Charles Abbot, William Boatman, Wesley Clark, Donald Dorsey, and Joe Reeder to file a brief as amici curiae is GRANTED.*** (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 06/05/2020)
113 MOVANT'S REPLY to Response to Motion, filed by League of United Latin American Citizens (LULAC), Texas League of United Latin American Citizens, re 93 MOTION to Re−urge re 40 Order on Motion to Intervene filed by Movant League of United Latin American Citizens (LULAC), Movant Texas League of United Latin American Citizens (Vera, Luis) (Entered: 06/03/2020)
114 Unopposed MOTION for Extension of Time to File Response/Reply to Motions to Dismiss by Joseph Daniel Cascino, Brenda Li Garcia, Gilberto Hinojosa, Chair of the Texas Democratic Party, Shanda Marie Sansing, Texas Democratic Party. (Attachments: # 1 Proposed Order)(Dunn, Chad) (Entered: 06/04/2020)
116 ORDER of USCA (certified copy). re 92 Notice of Appeal, 91 Notice of Appeal.***We now stay the preliminary injunction pending appeal.*** (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 06/08/2020)
117 ORDER STAYING CASE, this case is STAYED pending the conclusion of theappellate proceedings related to the preliminary injunction order. Signed by Judge Fred Biery. (wg) (Entered: 06/16/2020)

 
 Case 5:20-cv-00438-FB Document 1 Filed 04/07/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic §

Party, JOSEPH DANIEL CASCINO,

§

SHANDA MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

§

Defendants.

§

Case No. 5:20-cv-00438

PLAINTIFFS’ COMPLAINT

FACTS 1. Texas has an extensive history of disenfranchising voters and in this moment of national crisis, it appears poised to do so again without this Court’s intervention 2. The citizens of this state are in the midst of the worst pandemic in modern history. Because of a novel coronavirus, and the disease it causes termed COVID-19, federal, state, county and city officials have ordered various limitations statewide, the central feature of which is to limit contact between persons.

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3. Public Health Officials warn that government ordered “social distancing” will probably be in effect for a number of weeks and, even after it is lifted, will in all likelihood be reimposed at additional intervals.
4. Researchers at Harvard University describe three potential scenarios of upcoming events and all of them would include a significant barrier to wide-scale in-person voting over the next year.1
5. An influential report from the Imperial College in the United Kingdom2 that seemingly convinced the President of the United States to view the coronavirus as a public health emergency rather than a “hoax,” sets out some startling facts about the severity and longevity of the crisis facing the public.
1 https://ethics.harvard.edu/when-can-we-go-out 2 https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-CollegeCOVID19-NPI-modelling-16-03-2020.pdf
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6. According to experts, the expected outcome of the various measures ordered by levels of government, if effective, will be to “flatten the curve,” as these diagrams demonstrate.
7. These measures will not, of course, eliminate the risk of addition waves or localized infection hotspots.
8. These circumstances, public health experts agree, should however extend the coronavirus infection rate over a longer time period allowing the medical community to prepare and handle the onslaught of severe cases.
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9. The University of Washington posts real-time data projections of peak death rates and hospitalizations.3
10. These projections show that the peak infection rate of the first wave is later in Texas than other states.
11. Although as a nation, we have not yet flattened our first curve of infections, some other countries have.
12. For example, South Korea widely hailed as having a model response to the pandemic, upon releasing its citizens from social distancing orders, have experienced new emerging cases that have required re-imposition of those measures.4
13. Indeed, it is very likely true that the globe, and Texas, is in for wave after wave of new infections until there is an effective treatment, a vaccine and/or greater than approximately 60% of the population survive the epidemic, creating some measure of “herd immunity”.5
14. Given these conditions, upcoming elections for federal, state, county, city and other local offices will be vastly impacted.
15. Importantly, voter behavior will change. 16. Historically, most voters in Texas elections vote “in person” where they have contact with electronic equipment, election personnel, other voters and observers. 17. These very activities are now heavily discouraged by various government orders and are being discouraged in an enormous public education campaign.
3 https://covid19.healthdata.org/projections 4 https://www.nbcnews.com/news/world/south-korea-s-return-normal-interrupted-uptick-coronavirus-casesn1176021 5 http://www.euro.who.int/en/health-topics/communicable-diseases/influenza/data-and-statistics/pandemicinfluenza/about-pandemic-phases
4

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18. Even were this pandemic to ease, certain populations will feel the need and/or be required to continue social distancing.
19. The upcoming party primary runoff elections and the November General Election are certain to be influenced by these conditions.
20. Recent events pertaining to elections scheduled this week in Wisconsin demonstrate the disarray and voter confusion that results from inadequately planned elections held during a pandemic.
21. Importantly, the U.S. Supreme Court decision from yesterday served notice that cases such as this one that seek to remedy these conditions must proceed early and before an unknown deadline after which the federal courts will not decide the issues.
22. The Supreme Court held, “[t]his Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Citing Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam).6
23. In holding that it was too late for the Supreme Court to remedy constitutional harms in Wisconsin, the Supreme Court held, “The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.”7
24. These Plaintiffs file this suit at the earliest possible moment after receiving this Supreme Court guidance so as to ensure timely merits review.
6 https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf 7 Id.
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25. It is critically important that election officials and voters begin to prepare for an election where fewer ballots are cast in-person.
STATE COURT CASE 26. Given the pandemic conditions and their effects on election procedures, on March 27, 2020, some of these Plaintiffs filed a state court lawsuit seeking to determine application of state law. 27. In that case, Plaintiffs contend that existing state law allows voters to elect to cast their ballots by mail under the circumstances of this pandemic. 28. TEX. ELEC. CODE § 82.002 provides in full: Sec. 82.002. DISABILITY. (a) A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health. (b) Expected or likely confinement for childbirth on election day is sufficient cause to entitle a voter to vote under Subsection (a). 29. Plaintiffs further contend that participating in social distancing, to prevent known or unknown spread of what Governor Abbott has described as an “invisible disease”8 is a “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” 30. Texas authorities support the conclusion that the mail-in ballots are permitted under these circumstances.
8 https://www.kxan.com/news/coronavirus/live-gov-abbott-to-hold-press-conference-on-states-current-effortsagainst-covid-19/
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31. According to Texas Attorney General Opinion KP-0009, “[t]he plain language of section 82.002 does not require that a person satisfy any specific definition or standard of ‘disability’ outside of the Election Code in order to qualify to vote by mail.” In that opinion, the Attorney General found that a person who claimed a disability but had not been adjudicated by the Social Security Administration nevertheless qualified for a mail ballot under Section 82.002. Op. Tex. Att’y Gen. No. KP-009 (2015).
32. In a more recent opinion, the Attorney General opined, “a court would likely conclude that an individual civilly committed pursuant to chapter 841 and residing at the Center is eligible to vote by mail …” Op. Tex. Att’y Gen. No, KP-0149 (2017). A person who considers herself to be confined at home in order to avoid the spread of disease plainly falls into the persons entitled to vote by mail under this statute and the Court should so declare to prevent uneven application of this provision and in order to give election officials and voters clarity on the matter.
33. The manner and procedure of casting absentee ballots, which includes mail-in ballots, "is mandatory and directed by statutory requirements." Tiller v. Martinez, 974 S.W.2d 769, 775 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.). The Secretary of State has argued that persons who submit mail ballots without authorization to do so are subject to having their ballots voided.
34. A hearing will be held on April 15, 2020 in the state court case. 35. The state case presents only state law claims seeking to interpret this one provision of state law; no federal constitutional claims are urged.
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36. The state has filed an intervention in the state court case but notably takes no position on the merits of whether people between the age of 18 and 65 can avail themselves of vote by mail procedures.9
37. In the event the state courts do not clarify that vote by mail is permitted for all voters over the age of 18 who are social distancing, the harms described in this case will be even more severe.
ELECTION ADVISORY 38. On April 2, 2020, the Texas Secretary of State issued an election advisory concerning “voting for individuals that may be affected by COVID-19, and in preparing for the conduct of elections in the context of this public health issue.”10 39. Unhelpfully, the advisory gives local election administrators no material guidance on who can avail themselves of the vote by mail procedures because of the pandemic. 40. On the one hand, the Advisory envisions more voters using vote by mail: “Additional Ballot by Mail Supplies: Because there may be a higher volume of ballot by mail requests in 2020, we strongly recommend that you review your current supply of applications, balloting materials, and ballot stock for future elections. It is important you have the necessary supply on hand to meet increased requests you may receive.”11
9 Exhibit A – Intervention of State of Texas 10 Exhibit B - ELECTION ADVISORY N0. 2020-14 11 Id. at p. 7.
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41. On the other hand, the Advisory says only this as to who can vote by mail:
Voting Procedures Authorized under the Texas Election Code.
Below we have described some of the procedures that are authorized under Texas law that may be of assistance to voters that are affected by a recent sickness or a physical disability.
Voting by Mail
In Texas, in order to vote by mail, a voter must have a qualifying reason. A voter may vote early by mail if they:
will be away from their county on Election Day and during early voting; are sick or disabled; are 65 years of age or older on Election Day; or are confined in jail, but eligible to vote.
One of the grounds for voting by mail is disability. The Election Code defines “disability” to include “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” (Sec. 82.002). Voters who meet this definition and wish to vote a ballot by mail must submit an application for ballot by mail.
42. The Advisory gives no guidance as to what a disability may be under the statute.
43. Worse still, the Advisory imagines that a situation where each county could enforce
their own voting methods based upon yet to be sought local court orders:
Other Modifications to Voting Procedures: A court order could provide for modifications to other voting procedures as necessary to address the impact of COVID-19 within the jurisdiction. For example, in 2014, Dallas County obtained a court order authorizing modified voting procedures for individuals affected by the Ebola quarantine, modeled on the procedures outlined in Section 105.004 of the Texas Election Code for certain military voters in hostile fire pay zones. If your county obtains a court order allowing modifications to voting procedures to address COVID-19, please send a copy of the court order to the Secretary of State’s Office.
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44. Left without Court intervention, the state will march toward upcoming elections with no plan in place.
45. Importantly, Article I, Section 28 of the Texas Constitution prescribes that: “No power of suspending laws in this State shall be exercised except by the Legislature.” Tex. Const. Art. I, § 28.
46. Thus, if Texas Courts or the Texas Secretary of State do not find that “disability” under this statute includes people who are social distancing, then effectively every voter under the age of 65 faces a legally significant increased burden on the voting rights in the current pandemic circumstances.
47. Worse still, Texas has a history of threatening criminal prosecution of people who exercise their right to vote.
48. Georgia recently announced a criminal investigation squad12 of people who attempt to vote by mail and there is every reason to be concerned that Texas will follow suit.
49. Events unfolding in Wisconsin demonstrate that lack of organized election procedures under the pandemic circumstances will result in harm to rights guaranteed by the federal constitution.
50. Absent lawful, timely, effective state action, this court should ensure compliance with federal law by providing a remedy.
51. This case should proceed so that the Court can timely determine, before the unknown Purcell deadline, the constitutional rights of these Plaintiffs and be in a position to do so
12 https://www.ajc.com/news/state--regional-govt--politics/georgia-elections-chief-launches-effort-against-mailvoting-fraud/uKcFoPbbLnFC0A4nXihaLI/
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in the event the state court rulings serve to harm these federal rights and/or the state court proceedings are delayed thus preventing timely state resolution of the state law issue.
JURISDICTION AND VENUE 52. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1357, and 2284; and pursuant to 52 U.S.C. § 10301. Plaintiffs’ action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201, 2202, and 2284, as well as by Rules 57 and 65 of the Federal Rules of Civil Procedure. Venue is proper pursuant to 28 U.S.C. §§ 1391(b).
PARTIES Plaintiffs 53. Plaintiff Texas Democratic Party is a political party formed under the Texas Election Code, whose address is 314 East Highland Mall Blvd. Suite 508, Austin, Travis County, TX 78752. 54. Plaintiff Gilberto Hinojosa is Chairman of the Texas Democratic Party and a registered voter in Texas. 55. Joseph Daniel Cascino is a registered voter in Travis County, Texas who is eligible to vote, is a resident of Travis County, Texas, a citizen of the United States and who voted inperson in the March 3, 2020 Texas Democratic Primary Election, desires to vote in the Texas Democratic Party Runoff Election and under the pandemic circumstances would seek to do so by mail-in ballot. 56. Shanda Marie Sansing is a registered voter in Travis County, Texas who is eligible to vote, is a resident of Travis County, Texas, a citizen of the United States and who voted in-
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person in the March 3, 2020 Texas Democratic Primary Election, desires to vote in the Texas Democratic Party Runoff Election and under the pandemic circumstances would seek to do so by mail-in ballot.
57. Brenda Li Garcia is a registered voter in Bexar County, Texas who is eligible to vote, is a resident of Bexar County, Texas, a citizen of the United States and who voted in-person in the March 3, 2020 Texas Democratic Primary Election, desires to vote in the Texas Democratic Party Runoff Election and under the pandemic circumstances would seek to do so by mail-in ballot.
Defendants 58. Defendant Greg Abbot is the Governor of Texas and pursuant Article IV, Section I to the Texas Constitution is the chief executive officer of the State of Texas. 59. Defendant Ruth Hughs is sued in her official capacity as the Texas Secretary of State and may be served with process at 900 Congress, Suite 300 Austin, Travis County, Texas 78701. 60. Defendant Dana DeBeauvoir is sued in her official capacity as the Travis County Clerk and Election Administrator and may be served with process at 5501 Airport Blvd, Austin, Travis County, TX 78751. 61. Defendant Jacquelyn F. Callanen, is sued in her official capacity as the Bexar County Elections Administrator and may be served with process at 1103 S. Frio, Suite 100, San Antonio, TX 78207
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CLAIMS Count 1 Race and Language Minority Discrimination, Section 2, Voting Rights Act 62. Plaintiffs reallege the facts set forth above. 63. These Election Conditions13 violate Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, because they results in a denial of the right to vote on account of race and language minority, in that, under the totality of the circumstances, Plaintiffs and minority voters are denied an equal opportunity to participate effectively in the political process. 64. These Election Conditions also violate Section 2 because they deny and abridges the right to vote on account of race and language minority. Count 2 Race Discrimination, 14th Amendment 65. Plaintiffs reallege the facts set forth above. 66. These Election Conditions violate the Fourteenth Amendment to the Constitution of the United States because they purposely deny equal protection in voting to Plaintiffs and other minority voters on account of race and ethnic origin.
13 As described in the Facts section above.
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Count 3 Race Discrimination, 15th Amendment 67. Plaintiffs reallege the facts set forth above. 68. These Election Conditions violate the Fifteenth Amendment to the Constitution of the United States because they purposely deny and abridge the right to register and vote to Plaintiffs and other minority voters on account of race and ethnic origin.
Count 4 Non-racial discrimination in Voting, 14th Amendment 69. Plaintiffs reallege the facts set forth above. 70. These Election Conditions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they mandate arbitrary and disparate treatment of voters and deny equal access to the right to vote to eligible citizens. 71. These Election Conditions impose severe burdens on voters, in time, inconvenience and expense. The burden is severe whether measured by how it affects a single voter or by how many voters it affects. 72. These Election Conditions facially discriminate between classes of voters (such as between those having and those over the age of 65 or those with a disability that do not fit under the ultimate definition the state or various counties impose). 73. Either the severe burden described above, standing alone as applied, or the facial discrimination, standing alone, are sufficient to require that These Election Conditions be judged by strict scrutiny, and can survive only if their specific terms meet a compelling state interest
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(actual, not hypothetical) and if each of its provisions is narrowly tailored to meet that compelling interest in the least restrictive way. In this inquiry, the burden of proof is on Texas. These Election Conditions cannot meet this exacting test.
74. Indeed, these Election Conditions cannot even meet the less exacting test (applicable where a voting regulation is not burdensome and does not classify on its face) of balancing Texas’ interest claimed here (modest at best) against the critically important interests of Plaintiffs and other Texas registered voters who are disfranchised by these Election Conditions, especially as that balancing test is applied against the background of Texas’ longstanding and recent history of purposeful racial and ethnic discrimination, and in light of the number of poor, disabled and under age 65 voters targeted by these Election Conditions.
Count 5 Denial of Free Speech, First Amendment applied through the 14th Amendment 75. Plaintiffs reallege the facts set forth above. 76. Voting and participating in the election process is a form of expression which is the ultimate in free speech and association entitled to First Amendment protection. In light of the Supreme Court’s cases giving strong First Amendment protection to campaign funds spent to influence voters, the voters themselves can hardly be entitled to less protection. 77. As a restriction on free speech and association, these Election Conditions must be judged by the same strict scrutiny outlined above, a scrutiny that these Election Conditions cannot survive.
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Count 6 Abridgment of the Right to Vote based on Age, 26th Amendment 78. Plaintiffs reallege the facts set forth above. 79. These Election Conditions amount to abridgment of the right to vote based on the age of the voter. 80. All voters under the age of 65 face an unconstitutional burden, because of their age, to their fundamental right to vote.
Count 7 Bush v. Gore 81. Plaintiffs reallege the facts set forth above. 82. These Election Conditions amount to disparate election rules applied to the voters within this state. 83. For the reasons stated in the U.S. Supreme Court decision in Bush v. Gore, these conditions must be enjoined for being violative of constitutional guarantees.
EQUITY 84. Plaintiffs have no adequate remedy at law. Unless restrained, Defendants will injure and continue to injure Plaintiffs and other Texas voters in the manner set forth above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 85. Issue a declaratory judgment, pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rules of Civil Procedure Rule 57, declaring that these Election Conditions are illegal and
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unconstitutional as described above, in violation of Section 2 of the Voting Rights Act, 52 U.S.C. 10301 and the First, Fourteenth, Fifteenth and Twenty-Sixth Amendments to the United States Constitution.
86. Enjoin the Defendants, their agents, employees, and those persons acting in concert with them, from enforcing or giving any effect to the requirements of these Election Conditions, including enjoining Defendants from conducting any elections utilizing these Election Conditions.
87. Make all further orders as are just, necessary, and proper to ensure complete fulfillment of this Court’s declaratory and injunctive orders in this case.
88. Issue an order requiring Defendants to pay Plaintiffs’ costs, expenses and reasonable attorneys’ fees incurred in the prosecution of this action, as authorized by the Voting Rights Act and the Civil Rights Attorneys Fees Awards Act of 1976, 52 U.S.C. §§ 10310(e) & 42 U.S.C. § 1988.
89. Retain jurisdiction and require Texas to obtain preclearance pursuant to Section 3(c) of the Voting Rights Act, 52 U.S.C. § 10302(c) with respect to its voting practices and procedures.
90. Grant such other and further relief as it deems proper and just. This the 6th day of April, 2020.
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Respectfully submitted,
TEXAS DEMOCRATIC PARTY
By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC SBN #: 24059153 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
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JS 44 (Rev. 06/17)

Case No. 5:20-cv-00438 Case 5:20-cv-00438-FB Document 1-1 Filed 04/07/20 Page 1 of 1
CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS
TEXAS DEMOCRATIC PARTY, GILBERTO HINOJOSA, Chair of the Texas Democratic Party, JOSEPH DANIEL CASCINO, SHANDA MARIE SANSING, and BRENDA LI GARCIA
(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS
GREG ABBOTT, Governor of Texas; RUTH HUGHS, Texas Secretary of State, DANA DEBEAUVOIR, Travis County Clerk, and JACQUELYN F. CALLANEN, Bexar County Elections Administrator
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Chad W. Dunn, Brazil & Dunn, LLP, 4407 Bee Caves Road, Suite 111, Austin, Texas 78746 Telephone: (512) 717-9822

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

Click here for: Nature of Suit Code Descriptions.

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

PERSONAL INJURY u 625 Drug Related Seizure

u 365 Personal Injury -

of Property 21 USC 881

Product Liability

u 690 Other

u 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

u 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 371 Truth in Lending

Act

u 380 Other Personal

u 720 Labor/Management

Property Damage

Relations

u 385 Property Damage

u 740 Railway Labor Act

Product Liability

u 751 Family and Medical

u 422 Appeal 28 USC 158 u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 835 Patent - Abbreviated
New Drug Application u 840 Trademark
SOCIAL SECURITY u 861 HIA (1395ff) u 862 Black Lung (923) u 863 DIWC/DIWW (405(g)) u 864 SSID Title XVI u 865 RSI (405(g))

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 240 Torts to Land u 245 Tort Product Liability u 290 All Other Real Property

u 442 Employment

u 510 Motions to Vacate

u 443 Housing/

Sentence

Accommodations

u 530 General

u 445 Amer. w/Disabilities - u 535 Death Penalty

IMMIGRATION

u 871 IRS—Third Party 26 USC 7609

Employment

Other:

u 446 Amer. w/Disabilities - u 540 Mandamus & Other

Other

u 550 Civil Rights

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

u 462 Naturalization Application u 465 Other Immigration
Actions

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters u 895 Freedom of Information
Act
u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI.

CAUSE OF ACTION

42 USC 1983 and 52 USC 10301
Brief description of cause:

Constitutional and Voting Rights Act challenge to state election procedures

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
04/07/2020
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Chad W. Dunn

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 5:20-cv-00438-FB Document 1-2 Filed 04/07/20 Page 1 of 12
EXHIBIT A

Case 5:20-cv-00438-FB Document 1-2 Filed 04/07/20 No. D-1-GN-20-001610

Page 2 of 12
3/27/2020 2:54 PM Velva L. Price District Clerk Travis County
D-1-GN-20-001610 Nancy Rodriguez

TEXAS DEMOCRATIC PARTY AND

§

GILBERTO HINOJOSA, IN HIS

§

CAPACITY AS CHAIRMAN OF THE

§

TEXAS DEMOCRATIC PARTY,

§

JOSEPH DANIEL CASCINO AND

§

SHANDA MARIE SANSING,

§

Plaintiffs,

§

§

v.

§

§

DANA DEBEAUVOIR,

§

IN HER CAPACITY AS TRAVIS

§

COUNTY CLERK,

§

Defendant.

§

§

STATE OF TEXAS,

§

Intervenor.

§

IN THE DISTRICT COURT TRAVIS COUNTY, TEXAS 201st JUDICIAL DISTRICT

STATE OF TEXAS’S PLEA IN INTERVENTION

The State of Texas, by and through the Attorney General of Texas, respectfully intervenes in this case under Rule 60 of the Texas Rules of Civil Procedure to protect its interest in the uniform, consistent application of its laws in the State’s upcoming elections. The State has a strong and unique interest in ensuring that its elections are conducted in a fair and consistent manner. Plaintiffs here seek an advisory opinion that they hope would result in different and potentially unfair applications of the Texas Election Code across multiple elections for various State-level positions. Texas intervenes in this case to avoid that outcome.

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BACKGROUND The State of Texas allows early voting by mail, provided the person seeking to vote by mail meets the qualifications stated in the Election Code. See TEX. ELEC. CODE Ch. 82. Qualifications to vote early by mail are: • Declaring an anticipated absence from the county of residence on election
day; • Declaring a disability; • Demonstrating that the person seeking to vote by mail is over the age of 65;
or, • The person seeking to vote by mail anticipates being jailed during the
voting period. TEX. ELEC. CODE §§ 82.001-.004.
With respect to “disability,” the Texas Election Code provides that a “qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Id. § 82.002(a).
The early voting clerk in each county is responsible for conducting early voting and thus is the official who would review an application from a voter to vote by mail. See id. § 86.001(a) (“The early voting clerk shall review each application for a ballot to be voted by mail.”). For most state- and county-wide elections, the county clerk or
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elections administrator serves as the early voting clerk,1 whereas “[t]he city secretary is the early voting clerk for an election ordered by an authority of a city.” Id. § 83.005. Each locality’s early voting clerk is responsible for determining whether an application to vote by mail complies with all statutory requirements, providing notice and instructions to cure to a voter who submits a noncompliant application, and “provid[ing] an official ballot envelope and carrier envelope with each ballot provided to a voter” who properly completes an application. Id. §§ 86.001(a), .008, .009, .002(a). After a voter marks their mail-in ballot, they must return it to the early voting clerk in the official carrier envelope. Id. § 86.006(a). These requirements, though handled by local election officials, apply uniformly throughout Texas.
On March 20, 2020, Plaintiffs filed their Original Petition and Application for Temporary Injunction, Permanent Injunction, and Declaratory Judgment (“Pet.”), asserting jurisdiction under the UDJA (Texas Civil Practice and Remedies Code § 37.003) and Texas Election Code § 271.081. Plaintiffs request a declaration that Texas Election Code § 82.002 “allows any eligible voter, regardless of age and physical condition, to request, receive and have counted, a mail-in ballot, if they believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Pet. ¶ 22(a). Plaintiffs further seek to permanently enjoin the Travis County Clerk, in her official capacity,2 “to accept and tabulate any mail-in
1 TEX. ELEC. CODE § 83.002; but see id. §§ 83.003 (clerk in less-than-countywide elections held at county expense); 83.004 (clerk in elections ordered by county not held at county expense); 31.043 (county elections administrator performs, among other things, duties of county clerk. See also Election Duties, TEXAS SECRETARY OF STATE, available at https://www.sos.state.tx.us/elections/voter/county.shtml (listing early voting clerks). 2 Plaintiffs initially named Ruth R. Hughs, in her official capacity as Texas Secretary of State, as a defendant in this lawsuit, but nonsuited their claims against her two days after filing suit.
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ballots received from voters in an upcoming election who believe that they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Pet. ¶ 22(b).
The State now files this timely plea in intervention. See TEX. R. CIV. P. 60; TEX. CIV. PRAC. & REM. CODE § 37.006(b).
STANDARD FOR INTERVENTION “Any party may intervene [in a case] by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.” TEX. R. CIV. P. 60. An intervenor is not required to secure a court’s permission to intervene in a cause of action. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). Rather, an intervenor need only show a “justiciable interest in a pending suit to intervene in the suit as a matter of right.” In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008). “A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation.” Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Law Offices of Windle Turley v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.— Fort Worth 2003, no pet.)). “The interest asserted by the intervenor may be legal or equitable.” Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (citation omitted). With respect to the timing of an intervention, there is no pre-judgment deadline for intervention. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008) (citing TEX. R. CIV. P. 60; Citizens State Bank of Sealy v. Caney Invs., 746 S.W.2d 477, 478 (Tex. 1988)). Texas courts recognize an “expansive” intervention
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doctrine in which a plea in intervention may be untimely only if it is “filed after judgment,” Texas v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984)), though even post-judgment interventions are permissible under certain circumstances. Ledbetter, 251 S.W.3d at 36 (citing In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 725–26 (Tex. 2006)).
There is no final judgment in this case, and this intervention was brought within a week of the lawsuit being filed. Texas’s intervention is timely.
THE STATE’S INTERESTS Plaintiffs seek a preemptive advisory opinion interpreting the Election Code’s definition of “disability” for purposes of early voting. Texas has a justiciable interest in this lawsuit because that advisory opinion would at minimum cause tremendous confusion and could lead to unequal and inequitable application of the Election Code across the State. Moreover, providing that advisory opinion may require the Court to opine on the constitutionality of Texas’s rules for mail-in ballots—a question on which the Attorney General has a statutory right to opine. Texas has a strong interest in the efficient administration of its elections and in consistent application of its election laws across its 254 counties. Cf. Maryland v. King, 567 U.S. 1301, 1303 (2012) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (citations omitted)); True the Vote v. Hosemann, 43 F. Supp. 3d 693, 742 (S.D. Miss. 2014) (“The State . . . has a significant interest in enforcing its enacted
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laws.”). And the UDJA provides that, “[w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” TEX. CIV. PRAC. & REM. CODE § 37.006(b). Plaintiffs seek declaratory relief that would alter the Election Code’s standard for voting a ballot by mail—and would do so in Travis County only. Because this undermines Texas’s interest in uniform election administration, the State must be made a party to this case under § 37.006(b). Id.
This interest is particularly acute because Plaintiffs’ requested relief is not limited to county officials, but instead extends to state-level legislative officials—for example, members of the Senate. Counties have been delegated certain authority to administer local- and state-level elections. E.g., TEX. ELEC. CODE § 83.002, Nevertheless, the State retains a strong interest in maintaining control over the qualifications and method of selection for members of its Legislature lest “‘render[] too dependent on the [local] governments that branch . . . which ought to be dependent on the people alone.’” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808 (1995) (quoting The Federalist No. 52, p. 326 (C. Rossiter ed. 1961) (Madison)). To put it more concretely, Texas State Senate District 21 represents not Travis County but the people of Travis and multiple other counties. The State has a strong interest in the consistent application of its election laws across counties so that all of those Texans have the opportunity to elect their representative in the State Senate on equal terms. Cf. id.
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Moreover, the Attorney General has a statutory interest sufficient to intervene because, though Plaintiff purports to seek an advisory opinion regarding the meaning of State law, their allegations implicate the constitutionality of that law. The Attorney General has intervened in numerous instances to defend the constitutionality of State laws. See, e.g., Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex. 1999) (“The Attorney General intervened to defend [Texas Local Government Code § 143.057(d)]’s constitutionality.”); Corpus Christi People’s Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621, 624 (Tex. 1995) (“The Attorney General intervened for the limited purpose of defending the constitutionality of section 11.433 [of the Texas Tax Code].”). And Texas Civil Practice and Remedies Code § 37.006(b) requires that the Attorney General be notified about, and is “entitled to be heard” in, “any proceeding” in which a “statute, ordinance, or franchise is alleged to be unconstitutional.” TEX. CIV. PRAC. & REM. CODE § 37.006(b). The Texas Supreme Court and courts of appeal have recognized that the Attorney General can intervene to defend State statutes against constitutional attack. See, e.g., Motor Vehicle Bd. of the Tex. Dep’t of Transp. v. El Paso Indep. Auto Dealers Ass’n, Inc., 1 S.W.3d 108, 110 (Tex. 1999); Mercer v. Phillips Natural Gas Co., 746 S.W.2d 933, 940 (Tex. App.— Austin 1988, writ denied) (under § 37.006(b), “[t]he Attorney General is specifically authorized to be made a party to any litigation involving the constitutionality of a statute.”).
Though Plaintiffs appear to disclaim, at least for the moment, a constitutional challenge, the Election Code is “alleged to be unconstitutional.” TEX. CIV. PRAC. &
7

Case 5:20-cv-00438-FB Document 1-2 Filed 04/07/20 Page 9 of 12
REM. CODE § 37.006(b) (emphasis added). As a result, if the Court were to resolve their Petition on the merits, it may have to address the validity or constitutionality of § 82.002(a) as written and enforced in Travis County. See, e.g., Pet. ¶ 14 (Arguing that “the Right of Association granted by the First Amendment to the U.S. Constitution provides that political parties are free to select their party nominees without undue government influence” and that “[a]n immediate decision interpreting state law is required so that election preparations can continue in compliance therewith.”). Accordingly, the Attorney General is permitted to intervene and be heard in this case pursuant to Civil Practice and Remedies Code § 7.006(b). See Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 547 (Tex. 2016).
CONCLUSION For these reasons, the State of Texas intervenes in this action for the limited purpose of opposing Plaintiffs’ request for declaratory and injunctive relief.
8

Case 5:20-cv-00438-FB Document 1-2 Filed 04/07/20 Page 10 of 12
Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division /s/Anne Marie Mackin ANNE MARIE MACKIN Texas Bar No. 24078898 MICHAEL R. ABRAMS Texas Bar No. 24087072 Assistant Attorneys General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2798 | FAX: (512) 320-0667 anna.mackin@oag.texas.gov michael.abrams@oag.texas.gov ATTORNEYS FOR INTERVENOR STATE OF TEXAS
9

Case 5:20-cv-00438-FB Document 1-2 Filed 04/07/20 Page 11 of 12
CERTIFICATE OF SERVICE
I certify that on March 27, 2020, the foregoing instrument was served electronically through the electronic-filing manager in compliance with TRCP 21a to:
Chad W. Dunn State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 (512) 717-9822 Tel. (512) 515-9355 Fax chad@brazillanddunn.com
K. Scott Brazil State Bar. No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 (281) 580-6310 Tel. (281) 580-6362 Fax scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Gregg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 (512) 474-6061 Tel. (512) 582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC State Bar No. 24059153 N. Saint Mary’s, Suite 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
10

Case 5:20-cv-00438-FB Document 1-2 Filed 04/07/20 Page 12 of 12 I further certify that on March 27, 2020, the foregoing instrument was served via email upon: Sherine Thomas Sherine.Thomas@traviscountytx.gov Leslie Dippel Leslie.Dippel@traviscountytx.gov ATTORNEYS FOR DANA DEBAEUVOIR IN HER CAPACITY AS TRAVIS COUNTY CLERK
/s/Anne Marie Mackin ANNE MARIE MACKIN Assistant Attorney General
11

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EXHIBIT B

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The State of Texas

Elections Division P.O. Box 12060 Austin, Texas 78711-2060 www.sos.texas.gov

Phone: 512-463-5650 Fax: 512-475-2811
Dial 7-1-1 For Relay Services (800) 252-VOTE (8683)

Ruth R. Hughs Secretary of State

ELECTION ADVISORY N0. 2020-14

TO:

Election Officials

FROM: Keith Ingram, Director of Elections

DATE: April 2, 2020

RE:

COVID-19 (Coronavirus) Voting and Election Procedures

The purpose of this advisory is to assist election officials in facilitating voting for individuals that may be affected by COVID-19, and in preparing for the conduct of elections in the context of this public health issue.

Voter Registration Procedures

Stay-at-home orders and office closures in your jurisdiction may impact voters seeking to obtain voter registration applications. There are several existing options that you should encourage voters to utilize:

 In-County Updates via Texas Online: If a voter has moved within the same county, the voter may update their address online at www.Texas.gov. Voters that are active or in suspense can update their name and/or residence address through this secure website.
 Printed Voter Registration Applications: If a voter has access to a printer, the voter can use the SOS Informal Online Application to complete a voter registration application. This application can be printed and mailed to the applicable county voter registrar. When the voter selects their county of residence, it will preprint the county voter registrar’s address on the form so that when the voter mails it, they send it directly to their county voter registrar.
 Postage-Paid Voter Registration Applications: If a voter does not have access to a printer, the voter can request that a blank postage-paid voter registration application be mailed directly to the voter. The voter can fill out the request form on the SOS website. Counties can also mail blank applications to voters upon request.
 Revisions to Voter Registration Certificate: If a voter has their current voter registration certificate, they may make any necessary corrections or updates to the certificate, sign it and return it to the voter registrar.

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 Register2Vote.org: This is a third-party website that provides a remote printing option for voters. Voters can complete a form online and have a pre-filled application sent to them for completion. The voter must complete the form, sign it, and mail it in the included postagepaid envelope. This form is sent directly to the county voter registrar.
Voting Procedures Authorized under the Texas Election Code
Below we have described some of the procedures that are authorized under Texas law that may be of assistance to voters that are affected by a recent sickness or a physical disability.
Voting by Mail
In Texas, in order to vote by mail, a voter must have a qualifying reason. A voter may vote early by mail if they:
 will be away from their county on Election Day and during early voting;  are sick or disabled;  are 65 years of age or older on Election Day; or  are confined in jail, but eligible to vote.
One of the grounds for voting by mail is disability. The Election Code defines “disability” to include “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” (Sec. 82.002). Voters who meet this definition and wish to vote a ballot by mail must submit an application for ballot by mail.
 Application for a Ballot by Mail.
Chapter 102, Late Voting Due to Recent Sickness or Physical Disability
The Election Code authorizes late voting if a voter becomes sick or disabled on or after the day before the last day for submitting an application for a ballot to be voted by mail, and is unable to go to the polling place on Election Day. The voter must designate a representative to submit an application on the voter’s behalf in person to the early voting clerk. To be eligible to serve as a voter’s representative, a person: 1) must be at least 18 years of age; 2) must not be employed by or related within the third degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to a candidate whose name appears on the ballot; and 3) must not have served in the election as the representative for another applicant. The application must be received before 5:00 p.m. on Election Day. The application is reviewed and the early voting clerk verifies the applicant’s registration status in the same manner as early voting by mail. The early voting clerk must provide the same balloting materials that are used for early voting by mail to the representative who will deliver them to the voter. The voter should mark and seal the ballot in the same manner as voting by mail including signing the back flap of the carrier envelope. The ballot must be returned in its carrier envelope to the early voting clerk before 7:00 p.m. on Election Day by the same representative who delivered the ballot to the voter.
 Application for Emergency Early Voting Ballot Due to Sickness or Physical Disability  Instructions for Voter to include with Balloting Materials

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Chapter 104, Voting at Main Early Voting Location
The Election Code authorizes voters who are sick or disabled to vote on Election Day at the main early voting place, so long as voting machines of some type are used in the voter’s precinct and the voter’s sickness or disability prevents the voter from voting in the regular manner without personal assistance or likelihood of injury. For this procedure, the voter must complete and submit the applicable affidavit to be provided with the balloting materials used for early voting by mail. The voter must mark and seal the ballot in the same manner as in early voting by mail, except that the certificate on the carrier envelope need not be completed. After sealing the carrier envelope, the voter must give it to the clerk at the main early voting polling place between the hours of 7:00 a.m. and 7:00 p.m. The Early Voting Clerk must note on the envelope that the ballot was voted under Chapter 104.
 Affidavit for Voting at Early Voting Place on Election Day
Curbside Voting
If a voter is physically unable to enter the polling place without assistance or likelihood of injury to his or her health, the voter is eligible for entrance or curbside voting. (Sec. 64.009). This option must be made available at all polling locations. To provide for voting curbside, the voter must be qualified by the election officer before the voter can receive the ballot. An election officer may deliver a ballot or a DRE voting machine to the voter at the entrance or curb of the polling place. Poll watchers and inspectors must be allowed to accompany the election officer. Once the voter has marked his or her ballot, the election officer deposits the ballot for the voter. On the voter’s request, a person accompanying the voter to the polling place must be permitted to select the voter’s ballot and to deposit the ballot in the ballot box after the voter has voted. If the voter is not only physically unable to enter the polling place, but is also eligible for voter assistance in marking his or her ballot, they may receive assistance in marking and completing their ballot in accordance with Chapter 64, Subchapter B of the Election Code. Either two election officers may assist the voter or the voter may be given assistance by a person of the voter’s choice, other than the voter’s employer, an agent of that employer or an officer or agent of the voter’s labor union. For voters that are voting at the curbside, instruct polling place workers to allow the curbside voter the same privacy as a voter in the voting booth. We anticipate providing further guidance regarding curbside voting in the coming weeks.
Potential Court Order to Address Quarantined Voters
Voting in-person during early voting or on Election Day may not be an available option for all voters, including those affected by quarantines. Political subdivisions may need to act quickly to address the rapidly changing public health situation. In monitoring your situations locally, it is important to note that you may have a need to modify certain voting procedures. In these circumstances, you may want to consider seeking a court order to authorize exceptions to the voting procedures outlined in certain chapters of the Texas Election Code for these voters. The following are possible considerations:
1. Expanding Eligibility Requirements Under Chapter 102 (Late Voting for Sickness or Physical Disability): A court order could provide for a temporary expansion of the eligibility requirements for Chapter 102 voting to allow voters in quarantine to vote in this fashion. This option would also require the court, in some instances, to temporarily waive or modify the

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requirement for a physician’s signature on the application for this type of late ballot for purposes of any election(s) impacted by COVID-19.
2. Other Modifications to Voting Procedures: A court order could provide for modifications to other voting procedures as necessary to address the impact of COVID-19 within the jurisdiction. For example, in 2014, Dallas County obtained a court order authorizing modified voting procedures for individuals affected by the Ebola quarantine, modeled on the procedures outlined in Section 105.004 of the Texas Election Code for certain military voters in hostile fire pay zones.
If your county obtains a court order allowing modifications to voting procedures to address COVID-19, please send a copy of the court order to the Secretary of State’s Office.
Other Considerations Related to COVID-19 or Other Illnesses
If your political subdivision is affected by a stay-at-home order, quarantine or outbreak of COVID19 or any other type of illness, the conduct of your elections could be impacted. In order to protect the health and safety of election workers, below are some considerations:
 Cleaning and Sanitizing Voting System Equipment: o Voting System and e-Pollbook Equipment: Please check with your vendor about the specific procedures you should follow to clean and sanitize any equipment that is handled by voters or polling place workers. We received specific information from the following vendors about proper techniques for cleaning equipment:  Hart Intercivic Voting System Equipment: Users may wipe Hart equipment with 50% or higher clear, fragrance-free, isopropyl alcohol solution and a lint-free wipe. Do not use ammonia or detergent-based solutions as these may be harmful to the screen or the plastics surrounding the display. To avoid spotting, make certain that equipment screens are wiped dry (do not leave puddles).  ES&S Voting System Equipment: You can use a soft, line free cloth and isopropyl alcohol to clean the touchscreen of the voting machine. Do not spray directly on the touch screen. Only lightly dampen the cloth, do not soak it. Do not use any harsh cleaning products on the screen as this may damage the touch screen. Do not allow any liquid cleaner to come in contact with ballot stock.
 Cleaning and Sanitizing Polling Places: The Centers for Disease Control and Prevention (CDC) has issued recommendations for preventing the spread of coronavirus specifically in election polling locations. Here are a few of their specific suggestions: o Encourage workers to wash hands frequently: wash hands often with soap and water for at least 20 seconds. If soap and water are not readily available, use an alcohol-based hand sanitizer that contains at least 60% alcohol. o Practice routine cleaning of frequently touched surfaces with household cleaning spray or wipe: including tables, doorknobs, light switches, handles, desks, toilets, faucets, sinks, etc.

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o Disinfect surfaces that may be contaminated with germs after cleaning: A list of products with EPA-approved emerging viral pathogens claims is available on the EPA’s website. Products with EPA-approved emerging viral pathogens claims are expected to be effective against the virus that causes COVID-19 based on data for harder to kill viruses. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, use of personal protective equipment).
 Arrangement of Polling Places: It is imperative that you review your procedures related to setting up your polling place. Voting stations should be set up in a way that adheres to the suggested social and physical distance guidelines and allow for at least 6 feet between voters. Additionally, you should review your check-in stations to ensure you are providing adequate space between voters. This may include providing your workers with tape to mark off spacing guidelines on the floor of the polling place.
 Election Judges and Clerks: o Training and Recruiting of Election Workers:  Recruitment of Election Workers: We recommend that you make efforts to recruit and train additional workers beyond what you project to need for a given election. This will ensure that you have adequate back up workers to assist in the event that you have election workers that are unavailable at the last minute. • Recruiting from Current Workers: With regard to recruiting workers, you may want to ask your current appointed judges to provide recommendations of other individuals that can serve. Additionally, you may have different judges and clerks depending on the type of election you hold. We suggest you reach out to your entire pool of potential workers to determine availability for 2020 election dates. • Student Election Clerks: You may also want to consider enlisting student election clerks in your pool of available workers. For elections occurring outside of the school year, the student clerks would not need to obtain permission from their high school principal provided they obtained permission from their parent or legal guardian.  Training of Election Workers: In order to train a larger pool of workers, you may want to consider allowing your election workers to utilize the Secretary of State’s online Poll Worker Training. This training is focused on the legal procedures related to acceptance of voters and the voting process. Any procedures that are specific to your county would need to be provided through additional training or supplemental materials.
o Unavailability of Judges: If both the presiding judge and alternate judge are unavailable to serve and this is discovered after the 20th day before election day, the presiding officer of the appointing authority, or if the presiding officer is unavailable, the authority responsible for distributing supplies for the election, shall appoint a replacement judge. (Sec. 32.007). Additionally, if the authority is

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unable to find an election judge who is a qualified voter of the specific precinct needing a judge, the authority may appoint individuals that meet the eligibility requirements of an election clerk which encompasses a broader territory. (Sec 32.051(b)).

Type of Election

Presiding Officer of

Authority responsible

Appointing Authority for Delivering Supplies

Primary Election

County Chair of Political Party

County Chair of Political Party

Joint Primary
General Election for State and County Officers or County Ordered Election

County Election Officer County Judge

County Election Officer County Election Officer

Cities
Other Political Subdivision Elections

Mayor
Presiding Officer of Governing Body of Political Subdivision

City Secretary
Secretary of Governing Body; if no secretary, the presiding officer of governing body

 Polling Locations: o Review List of Locations: We recommend reviewing your list of current polling locations to determine if you should consider proactively relocating them. For example, if you are currently using assisted living facilities or residential care facilities that have residents that would be in one of the higher-risk categories, relocating the polling place may be in the best interest of the individuals at that location. Please be advised that if you choose to relocate a polling place in a facility like this, we strongly recommend that you provide information to the residents about voting by mail to ensure that they are still able to vote in upcoming elections without the difficulty of leaving the facility to travel to a different polling place. Additionally, you should be monitoring your current polling places to determine if any of those locations have been closed as a result of business or government building closures. o Unavailable Locations: If polling locations become unavailable, you may need to relocate your polling location or combine and consolidate that location with another polling place in close proximity to it. To the extent possible, any changes to polling locations must be made in accordance with Chapters 42 and 43 of the Texas Election Code. If you are in a situation where you will have difficulty complying with these chapters, please contact the Secretary of State’s office to discuss other available options.

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▪ Notice of Changes to Polling Locations: Please be advised that if you have a polling location change, you must post notice of that change at the location that is no longer being used. Any websites that contain polling locations should be updated. For certain county-run elections, polling place information must also be updated with the Secretary of State’s office, if applicable.
o Website Notices: At this time, you may want to consider posting a notice on your website instructing voters to check your website for updates and changes to polling locations prior to early voting and election day. This will help ensure that voters are always getting updated and accurate information.
 Voting by Mail Considerations: At this time, the CDC has not provided any special recommendations or precautions for the storage of ballots. However, it is recommended that workers handling mail ballots practice hand hygiene frequently. Please continue to stay updated on the CDC’s website as they provide additional recommendations regarding the handling of mail and other topics. o Additional Ballot by Mail Supplies: Because there may be a higher volume of ballot by mail requests in 2020, we strongly recommend that you review your current supply of applications, balloting materials, and ballot stock for future elections. It is important you have the necessary supply on hand to meet increased requests you may receive.
 Election Office Hours: Election officials are required to maintain certain office hours related to their election duties for a prescribed number of days before and after an election. If your office is closed for public health reasons or you are unable to be at your office during the mandatory office hour time frame, we advise that entities post information on how to get in contact with the applicable officials for election related information. This may include posting phone numbers, an email address that can receive public inquiries, or even a mailing address that can receive written requests for information. We recommend that you assign someone to periodically check for voicemails, emails, or mail related to your election.
 Voter Registration Office Hours: Section 12.004(c) requires the voter registrar’s office to be open while the polls are open on the date of any election held in the county on a uniform election date. If you have entities that will be holding an election on May 2, 2020, you must satisfy this requirement. However, we believe that as long as you can provide answers to voter registration questions remotely and you notify your entities about how to reach you, you do not need to be physically in the office. You must also be able to provide all of the same voter registration services you would otherwise provide to your local political subdivisions if you were in the office.
 Volunteer Deputy Registrars (VDR): You still have a legal obligation to process volunteer deputy registrar applications. If you must suspend volunteer deputy registrar classes, we strongly advise that you adopt the SOS online Volunteer Deputy Registrar training and in-person examination option. This would allow you to schedule the examinations based on need or desire by VDRs and would allow you to temporarily reduce or cancel in-person training as dictated by your county’s circumstances. For more information about adopting the online training and examination, please see Advisory 2019-04. Additionally, you still have an obligation to receive voter registration

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applications from VDRs. To eliminate person-to-person contact, you could provide drop boxes for voter registration applications. These drop boxes should be located in close proximity to your main office or connected to it. They should be secured and checked regularly.  Cybersecurity Impacts: If your political subdivision is affected by a widespread quarantine or outbreak of COVID-19 or any other type of illness, your office staff might be mandated to work remotely. In addition, the volume of voters that will start to utilize your internet-based resources will increase. During a crisis situation, bad actors may try to capitalize on the circumstances to take actions that could compromise the security of your elections office. Please remain vigilant about following best practices related to cybersecurity and election security.
o Service Interruption: Networks are normally built to sustain high volume traffic, but the magnitude of the COVID-19 crisis presents an increased risk that systems may become compromised. An abnormal increase in network traffic could be misinterpreted as a DOS (Denial of Service) attack which could shut down networks depending on the type of security implementation.
o Ransomware: Cybercriminals can infect the computers of government agencies before demanding that they pay a ransom for an encryption key that will free their locked files and records. Ransomware can lock up databases preventing polling places from verifying eligibility and confirming that voters are in the right districts/precincts.
o Election Systems and e-Pollbook Equipment: As mentioned above, databases are susceptible because they must have a constant network connectivity. When relocating polling places, it is very important to ensure that the systems are connected to a secure and reliable network.
o Voter Registration Scams: Voter registration procedures are not conducted over the phone or the internet other than the previously mentioned authorized channels. Be aware of scams that are targeted to steal personally identifiable information from voters and/or election workers. It is especially important not to provide personal information of voters or election workers over the phone if your office is solicited in this manner.
 Communications Plan: You should develop a plan for communicating to voters and election workers when any changes occur that may impact them. The communications plan should involve updating your official website with specific details. Any use of social media should direct people back to your official website to ensure that only official, accurate, and authorized information is being disseminated to the public. We suggest you develop a plan for working with local media to keep the public informed. Finally, any major changes that affect the election process in your county should be communicated to the Secretary of State’s office.
Additional Resources
Here are a list of additional resources that may be helpful to you.  Election Assistance Commission - Coronavirus (COVID-19) Resources.

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 Centers for Disease Control and Prevention (CDC) – Recommendations for Election Polling Locations
 Texas Department of State Health Services – Coronavirus Disease 2019 (COVID-19)
If you have any questions regarding this advisory, please contact the Elections Division at 1-800252-2216.
KI:CA

 
 Case 5:20-cv-00438-FB Document 9 Filed 04/29/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic §

Party, JOSEPH DANIEL CASCINO,

§

SHANDA MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

§

Defendants.

§

CIVIL ACTION NO. 5: 20-CV-00438-FB

PLAINTIFFS’ FIRST AMENDED COMPLAINT
1. FACTS 1. Texas has an extensive history of disenfranchising voters and in this moment of national crisis, poised to do so again unless this Court intervenes. 2. The citizens of this state are facing the worst pandemic in modern history. Because of a novel coronavirus, and the disease it causes termed COVID-19, federal, state, county and city officials have ordered various limitations statewide, the central feature of which is to limit contact between persons.
1

Case 5:20-cv-00438-FB Document 9 Filed 04/29/20 Page 2 of 22 3. Public Health Officials warn that government ordered “social distancing” will probably be in effect, in whole or in part, for a number of months and, even after it is lifted, will in all likelihood be re-imposed at additional intervals. 4. Researchers at Harvard University describe three potential scenarios of upcoming events and all of them would include a significant barrier to wide-scale in-person voting.1 5. An influential report from the Imperial College in the United Kingdom2 that seemingly convinced the President of the United States to view the coronavirus as a public health emergency rather than a “hoax,” sets out some startling facts about the severity and longevity of the crisis facing the public.
1 https://ethics.harvard.edu/when-can-we-go-out 2 https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-CollegeCOVID19-NPI-modelling-16-03-2020.pdf
2

Case 5:20-cv-00438-FB Document 9 Filed 04/29/20 Page 3 of 22
6. According to experts, the expected outcome of the various measures ordered by levels of government, if effective, will be to “flatten the curve,” as these diagrams demonstrate.
7. These measures will not, of course, eliminate the risk of addition waves or localized infection hotspots.
8. These circumstances, public health experts agree, should however extend the coronavirus infection rate over a longer time period allowing the medical community to prepare and handle the onslaught of severe cases.
3

Case 5:20-cv-00438-FB Document 9 Filed 04/29/20 Page 4 of 22
9. The University of Washington uploads real-time data projections of peak death rates and hospitalizations.3
10. These projections show that the peak infection rate of the first wave is later in Texas than other states.
11. Some countries have reduced the rate of virus transmission only to see them rise again once more commerce is allowed.
12. For example, South Korea widely hailed as having a model response to the pandemic, upon releasing its citizens from social distancing orders, have experienced new emerging cases that have required re-imposition of those measures.4
13. Indeed, it is very likely true that the globe, and Texas, is in for wave after wave of new infections until there is an effective treatment, a vaccine and/or greater than approximately 60% of the population survive the epidemic, creating some measure of “herd immunity”.5
14. Given these conditions, upcoming elections for federal, state, county, city and other local offices will be vastly impacted.
15. Importantly, voter behavior will change. 16. Historically, most voters in Texas elections vote “in person” where they have contact with electronic equipment, election personnel, other voters and observers. 17. These very activities are now heavily discouraged by various government orders and are being discouraged in an enormous public education campaign.
3 https://covid19.healthdata.org/projections 4 https://www.nbcnews.com/news/world/south-korea-s-return-normal-interrupted-uptick-coronavirus-casesn1176021 5 http://www.euro.who.int/en/health-topics/communicable-diseases/influenza/data-and-statistics/pandemicinfluenza/about-pandemic-phases
4

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18. Even were this pandemic to cease, certain populations will feel the need and/or be

required to continue social distancing. to avoid injuring their health or the health of others.

19. The upcoming party primary runoff elections and the November General Election

are certain to be influenced by these conditions and all medical studies support the proposition

that the mail is safe.

20. Recent events pertaining to elections that occurred in Wisconsin demonstrate the

disarray and voter confusion that results from inadequately planned elections held during a

pandemic. 21.

Importantly, the U.S. Supreme Court decision from April 6th, 2020, served notice

that cases like the one at bar seek an early remedy and before an unknown deadline after which

the federal courts will not decide the issues.

22. The Supreme Court held, “[t]his Court has repeatedly emphasized that lower

federal courts should ordinarily not alter the election rules on the eve of an election.” Citing Purcell

v. Gonzalez, 549 U. S. 1 (2006) (per curiam).6

23. In holding that it was too late for the Supreme Court to remedy constitutional

harms in Wisconsin, the Supreme Court held, “[t]he Court’s decision on the narrow question

before the Court and should not be viewed as expressing an opinion on the broader question of

whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.”7

6 https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf 7 Id.
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24. These Plaintiffs filed this suit at the earliest possible moment after receiving this Supreme Court guidance to ensure timely merits review.
25. It is critically important that election officials and voters begin to prepare for an election where fewer ballots are cast in-person.
ELECTION ADVISORY 26. On April 2, 2020, the Texas Secretary of State issued an election advisory concerning “voting for individuals that may be affected by COVID-19, and in preparing for the conduct of elections in the context of this public health issue.”8 27. Unhelpfully, the advisory gives local election administrators no material guidance on who can avail themselves of the vote by mail procedure because of the pandemic. 28. On the one hand, the Advisory envisions more voters using vote by mail: “Additional Ballot by Mail Supplies: Because there may be a higher volume of ballot by mail requests in 2020, we strongly recommend that you review your current supply of applications, balloting materials, and ballot stock for future elections. It is important you have the necessary supply on hand to meet increased requests you may receive.”9 29. On the other hand the Advisory says only the following in regards to who can vote by mail:
8 Exhibit B - ELECTION ADVISORY N0. 2020-14 9 Id. at p. 7.
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Voting Procedures Authorized under the Texas Election Code.
Below we have described some of the procedures that are authorized under Texas law that may be of assistance to voters that are affected by a recent sickness or a physical disability.
Voting by Mail
In Texas, in order to vote by mail, a voter must have a qualifying reason. A voter may vote early by mail if they:
will be away from their county on Election Day and during early voting; are sick or disabled; are 65 years of age or older on Election Day; or are confined in jail, but eligible to vote.
One of the grounds for voting by mail is disability. The Election Code defines “disability” to include “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” (Sec. 82.002). Voters who meet this definition and wish to vote a ballot by mail must submit an application for ballot by mail.
30. The Advisory gives no guidance as to the meaning of “disability,” as it appears in
the statute.
31. Worse still, the Advisory imagines a situation where each county could enforce
their own voting methods based upon not yet sought local court orders:
Other Modifications to Voting Procedures: A court order could provide for modifications to other voting procedures as necessary to address the impact of COVID-19 within the jurisdiction. For example, in 2014, Dallas County obtained a court order authorizing modified voting procedures for individuals affected by the Ebola quarantine, modeled on the procedures outlined in Section 105.004 of the Texas Election Code for certain military voters in hostile fire pay zones. If your county obtains a court order allowing modifications to voting procedures to address COVID-19, please send a copy of the court order to the Secretary of State’s Office.
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STATE COURT CASE 32. Given the pandemic conditions and their effects on election procedures, on March 27, 2020, some of these Plaintiffs filed a state court lawsuit seeking to determine application of state law., more specifically the exception to voting in person. 33. In that case, Plaintiffs contend that existing state law allows voters to elect to cast their ballots by mail under the circumstances of this pandemic. 34. TEX. ELEC. CODE § 82.002 provides in full: Sec. 82.002. DISABILITY. (a) A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health. (b) Expected or likely confinement for childbirth on election day is sufficient cause to entitle a voter to vote under Subsection (a). 35. Plaintiffs contend that participating in social distancing, to prevent known or unknown spread of what Governor Abbott has described as an “invisible disease”10 is a “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” 36. Texas authorities support the conclusion that the mail-in ballots are permitted under these circumstances. 37. According to Texas Attorney General Opinion KP-0009, “[t]he plain language of section 82.002 does not require that a person satisfy any specific definition or standard of ‘disability’ outside of the Election Code in order to qualify to vote by mail.” In that opinion, the
10 https://www.kxan.com/news/coronavirus/live-gov-abbott-to-hold-press-conference-on-states-current-effortsagainst-covid-19/
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Attorney General found that a person who claimed a disability but had not been adjudicated by the Social Security Administration nevertheless qualified for a mail ballot under Section 82.002. Op. Tex. Att’y Gen. No. KP-009 (2015).
38. In a more recent opinion, the Attorney General opined, “a court would likely conclude that an individual civilly committed pursuant to chapter 841 and residing at the Center is eligible to vote by mail …” Op. Tex. Att’y Gen. No, KP-0149 (2017). A person who considers herself to be confined at home in order to avoid the spread of disease plainly falls into the persons entitled to vote by mail under this statute and the Court should so declare to prevent uneven application of this provision and in order to give election officials and voters clarity on the matter.
39. The manner and procedure of casting absentee ballots, which includes mail-in ballots, "is mandatory and directed by statutory requirements." Tiller v. Martinez, 974 S.W.2d 769, 775 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.). The Secretary of State has argued that persons who submit mail ballots without authorization to do so are subject to having their ballots voided.
40. The state case presents only state law claims seeking to interpret this one provision of state law; no federal constitutional claims are urged.
41. The state has filed an intervention in the state court case but notably initially took no position on the merits of whether people between the age of 18 and 65 can avail themselves of vote by mail procedures.11
42. The state argued that vote by mail decisions are left up to county level officers.
11 Exhibit A – Intervention of State of Texas
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43. On April 15, 2020 the state court heard evidence of the plaintiff’s temporary injunction motion and Texas’ plea to the jurisdiction.
44. The state court, after hearing evidence and argument, verbally announced the denial of the plea to the jurisdiction and the granting of the temporary injunction.
45. On April 17, 2020, Travis County District Court Judge Tim Sulak issued his written order granting a temporary injunction and enjoining Travis County and the state of Texas from rejecting mail ballots received from voters who voted by mail based on the disability category of eligibility as a result of the COVID-19 pandemic.
46. The order also enjoined the state of Texas from issuing guidance or taking other actions during all elections affected by the COVID-19 pandemic that would prohibit eligible voters from submitting ballots based on the disability category, or suggest that these individuals be subject to penalty for doing so.
47. In response to the order, as it was being verbally announced by State Court District Judge Sulak, Attorney General Paxton made public a letter he sent to the Chair of the Texas House of Representatives Committee on Elections.
48. In this letter, Attorney General Paxton gave a non-official, advisory opinion in which he addressed whether the risk of transmission of COVID-19 would entitle Texas voters to a mail-in ballot.
49. Attorney General Paxton wrote that “[w]e conclude that, based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a
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qualifying sickness or physical condition does not constitute a disability under the Election Code for the purposes of receiving a ballot by mail.”
50. Attorney General Paxton made clear that the executive branch of the state government would not be bound by the state district court’s ruling, stating that “[he is] disappointed that the district court ignored the plain text of the Texas Election Code too allow perfectly healthy voters to take advantage of special protection made available to Texans with actual illness or disabilities.”
51. Attorney General Paxton characterized the state district court’s ruling as an “unlawful expansion of mail-in voting.”
52. Attorney General Paxton's letter threatened criminal prosecution and the timing of his letter was not by accident.
53. Attorney General Paxton's letter threatened third party groups for engaging in political speech with voters concerning vote by mail.
54. The state appealed and claimed the ruling was "superseded" automatically. 55. Whether or not a state court declaration of what state law requires is automatically "superseded" under these circumstances, the order remains binding of Dana DeBeauvoir. 56. Travis County has announced on their website that the county will accept mail-inballots as a legal alternative to voting in person based on the Trial Courts order. 57. Cameron County has announced they will not reject any voter’s request for a mailin ballot on the eligibility category of disability due to Texas District Court Judge Sulak’s order.
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58. Harris County has proceeded to follow the ruling and the County Attorney has written an opinion that Judge Sulak's ruling should be followed.
59. The City of Mont Belvieu and Barbers Hill ISD proceed with elections scheduled next week, in compliance with Judge Sulak's ruling.
60. Meanwhile, other jurisdictions are left to determine how to proceed, balancing the state court order, Paxton's letter and the SOS Advisory.
61. Importantly, Article I, Section 28 of the Texas Constitution prescribes that: “No power of suspending laws in this State shall be exercised except by the Legislature.” Tex. Const. Art. I, § 28.
62. Thus, if Texas Courts or the Texas Secretary of State do not find that “disability” under this statute includes people who are social distancing, then
63. Nearly every voter, including Plaintiffs, under the age of 65 faces a legally significant increased burden on their voting rights amid these circumstances. It forces millions of Texas voters to choose, risk infection from a dangerous and often fatal disease or be disenfranchised.
64. TDP Is harmed by having the state's efforts to quell its political speech. 65. Given the state's executive branch's actions, it is now clear that resolution of the state court case will not come timely and even were it to do so, would not remedy the ongoing constitutional harms befalling these Plaintiffs. 66. This case should proceed so that the Court can timely determine, before the Purcell deadline, the constitutional rights of these Plaintiffs..
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67. In addition, election officials need time to prepare for vote by mail. JURISDICTION AND VENUE
68. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1357, and 2284; and pursuant to 42 U.S.C. §§ 1973, 1973j(f). Plaintiffs’ action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201, 2202, and 2284, as well as by Rules 57 and 65 of the Federal Rules of Civil Procedure. Venue is proper pursuant to 28 U.S.C. §§ 1391(b).
PARTIES Plaintiffs 69. Plaintiff Texas Democratic Party is a political party formed under the Texas Election Code, whose address is 314 East Highland Mall Blvd. Suite 508, Austin, Travis County, TX 78752. 70. Plaintiff Gilberto Hinojosa is Chairman of the Texas Democratic Party and a registered voter in Texas. 71. Joseph Daniel Cascino is a registered voter in Travis County, Texas who is eligible to vote, is a resident of Travis County, Texas, a citizen of the United States and who voted inperson in the March 3, 2020 Texas Democratic Primary Election, desires to vote in the Texas Democratic Party Runoff Election and under the pandemic circumstances would seek to do so by mail-in ballot. 72. Shanda Marie Sansing is a registered voter in Travis County, Texas who is eligible to vote, is a resident of Travis County, Texas, a citizen of the United States and who voted inperson in the March 3, 2020 Texas Democratic Primary Election, desires to vote in the Texas
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Democratic Party Runoff Election and under the pandemic circumstances would seek to do so by mail-in ballot.
73. Brenda Li Garcia is a registered voter in Bexar County, Texas who is eligible to vote, is a resident of Bexar County, Texas, a citizen of the United States and who voted in-person in the March 3, 2020 Texas Democratic Primary Election, desires to vote in the Texas Democratic Party Runoff Election and under the pandemic circumstances would seek to do so by mail-in ballot.
Defendants 74. Defendant Greg Abbot is the Governor of Texas and pursuant Article IV, Section I to the Texas Constitution is the chief executive officer of the State of Texas. 75. Defendant Ruth Hughs is sued in her official capacity as the Texas Secretary of State and may be served with process at 900 Congress, Suite 300 Austin, Travis County, Texas 78701. 76. Defendant Ken Paxton is sued in his official capacity as the Texas Attorney General and may be served with process at 300 W. 15th Street, Austin, Travis County, Texas 78701. 77. Defendant Dana DeBeauvoir is sued in her official capacity as the Travis County Clerk and Election Administrator and may be served with process at 5501 Airport Blvd, Austin, Travis County, TX 78751. 78. Defendant Jacquelyn F. Callanen, is sued in her official capacity as the Bexar County Elections Administrator and may be served with process at 1103 S. Frio, Suite 100, San Antonio, TX 78207.
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CLAIMS Count 1 Race and Language Minority Discrimination, Section 2, Voting Rights Act 79. Plaintiffs reallege the facts set forth above. 80. These Election Conditions12 violate Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, because they results in a denial of the right to vote on account of race and language minority, in that, under the totality of the circumstances, Plaintiffs and minority voters are denied an equal opportunity to participate effectively in the political process. 81. These Election Conditions also violate Section 2 because they deny and abridges the right to vote on account of race and language minority. Count 2 Race Discrimination, 14th Amendment 82. Plaintiffs reallege the facts set forth above. 83. These Election Conditions violate the Fourteenth Amendment to the Constitution of the United States because they purposely deny equal protection in voting to Plaintiffs and other minority voters on account of race and ethnic origin.
12 As described in the Facts section above.
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Count 3 Race Discrimination, 15th Amendment 84. Plaintiffs reallege the facts set forth above. 85. These Election Conditions violate the Fifteenth Amendment to the Constitution of the United States because they purposely deny and abridge the right to register and vote to Plaintiffs and other minority voters on account of race and ethnic origin.
Count 4 Non-racial discrimination in Voting, 14th Amendment 86. Plaintiffs reallege the facts set forth above. 87. These Election Conditions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they mandate arbitrary and disparate treatment of voters and deny equal access to the right to vote to eligible citizens. 88. These Election Conditions impose severe burdens on voters, in time, inconvenience and expense. The burden is severe whether measured by how it affects a single voter or by how many voters it affects. 89. These Election Conditions facially discriminate between classes of voters (such as between those having and those over the age of 65 or those with a disability that do not fit under the ultimate definition the state or various counties impose). 90. Either the severe burden described above, standing alone as applied, or the facial discrimination, standing alone, are sufficient to require that These Election Conditions be judged by strict scrutiny, and can survive only if their specific terms meet a compelling state interest
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(actual, not hypothetical) and if each of its provisions is narrowly tailored to meet that compelling interest in the least restrictive way. In this inquiry, the burden of proof is on Texas. These Election Conditions cannot meet this exacting test.
91. Indeed, these Election Conditions cannot even meet the less exacting test (applicable where a voting regulation is not burdensome and does not classify on its face) of balancing Texas’ interest claimed here (modest at best) against the critically important interests of Plaintiffs and other Texas registered voters who are disfranchised by these Election Conditions, especially as that balancing test is applied against the background of Texas’ longstanding and recent history of purposeful racial and ethnic discrimination, and in light of the number of poor, disabled and under age 65 voters targeted by these Election Conditions.
Count 5 Denial of Free Speech, First Amendment applied through the 14th Amendment 92. Plaintiffs reallege the facts set forth above. 93. Voting and participating in the electoral process is a form of expression which is the ultimate form of political speech. As such, it is entitled to First Amendment protection. In light of the Supreme Court’s cases giving strong First Amendment protection to campaign funds spent to influence voters, the voters themselves can hardly be entitled to less protection. 94. As a restriction on free speech and association, these Election Conditions must be judged by the same strict scrutiny outlined above, a scrutiny that these Election Conditions cannot survive.
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Count 6 Violation of Procedural Due Process for Vagueness, 14th Amendment 95. Plaintiffs reallege the facts set forth. 96. The Texas Election Code surrounding mail ballot eligibility are poorly defined, enforced, and understood. 97. A restriction to the right to vote due to vagueness of a statutory provision creates Election Conditions that violate voters’ Due Process rights under the 14th Amendment because the law fails to provide people of ordinary intelligence with a reasonable opportunity to understand if they are permitted to vote by mail during the COVID-19 pandemic, and because the vagueness of the statutory provision encourages arbitrary and discriminatory enforcement by Attorney General Paxton. 98. When a vague statute infringes upon basic First Amendment freedoms and/or imposes criminal prosecution, a more stringent vagueness test must apply. Under this stringent test, these Election Conditions cannot survive.
Count 7 Abridgment of the Right to Vote based on Age, 26th Amendment 99. Plaintiffs reallege the facts set forth above. 100. These Election Conditions amount to abridgment of the right to vote based on the age of the voter. 101. The abridgement of the right to vote based on age complained of in this case is unconstitutional as applied to these Plaintiffs during these pandemic circumstances.
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102. The abridgement of the right to vote based on age complained of in this case is also facially unconstitutional.
103. Nearly all voters under the age of 65 face an unconstitutional burden on their fundamental right to vote because of their age.
Count 7 Voter Intimidation 104. Plaintiffs reallege the facts set forth above. 105. Title 42 U.S.C. § 1985, part of the Civil Rights Act of 1871, creates a private civil remedy for three prohibited forms of conspiracy to interfere with civil rights under that section.” 106. The defendants state actors are part of conspiracy of two or more persons; 107. The conspiracy is for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 108. Attorney General Paxton's letter was an act in furtherance of the conspiracy; 109. Upon information and belief, other acts have been taken in further of this conspiracy; 110. The conspiracy causes injury to a person or property, or deprives her of a right or privilege of a United States citizen.
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EQUITY 111. Plaintiffs have no adequate remedy at law. Unless restrained, Defendants will injure and continue to injure Plaintiffs and other Texas voters in the manner set forth above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 112. Issue a declaratory judgment, pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rules of Civil Procedure Rule 57, declaring that these Election Conditions are illegal and unconstitutional as described above, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973 and the First, Fourteenth, Fifteenth and Twenty-Sixth Amendments to the United States Constitution. 113. Enjoin the Defendants, their agents, employees, and those persons acting in concert with them, from enforcing or giving any effect to the requirements of these Election Conditions, including enjoining Defendants from conducting any elections utilizing these Election Conditions. 114. Make all further orders as are just, necessary, and proper to ensure complete fulfillment of this Court’s declaratory and injunctive orders in this case. 115. Issue an order requiring Defendants to pay Plaintiffs’ costs, expenses and reasonable attorneys’ fees incurred in the prosecution of this action, as authorized by the Voting Rights Act and the Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C. §§ 1973l(e) & 1988.
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116. Retain jurisdiction and require Texas to obtain preclearance pursuant to Section
3(c) of the Voting Rights Act, 42 U.S.C. § 1973a(c) with respect to its voting practices and
procedures.
117. Grant such other and further relief as it deems proper and just.
This the 29th day of April, 2020.
Respectfully submitted,
TEXAS DEMOCRATIC PARTY
By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
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Case 5:20-cv-00438-FB Document 9 Filed 04/29/20 Page 22 of 22 Martin Golando The Law Office of Martin Golando, PLLC SBN #: 24059153 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com ATTORNEYS FOR PLAINTIFFS
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 Case 5:20-cv-00438-FB Document 10 Filed 04/29/20 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic §

Party, JOSEPH DANIEL CASCINO,

§

SHANDA MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiff,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

§

Defendants.

§

CIVIL ACTION NO. 5: 20-CV-00438-FB

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

TO THE HONORABLE JUDGE FRED BIERY: The Rule of Law has broken down in the State of Texas, and it has become clear that the
federal courts will have to ensure basic constitutional protections for the U.S. Citizens within. On April 15, 2020, some of these plaintiffs appeared before a state district court seeking an interpretation of the state law that provides that voters with a physical condition that could cause them injury were they to vote in person entitles them to vote by mail. After an evidentiary hearing in which the State participated and cross-examined witnesses, the court (state district judge Tim Sulak) announced from the bench its finding that state law permits vote by mail to every eligible voter, amid the COVID-19 pandemic. As that ruling was announced in an

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extraordinary display of disrespect for orders of the state judiciary, Attorney General Paxton1 issued an advice letter threatening to prosecute people and groups who complied with the state court ruling. After the written order was entered on April 17, the state appealed but it appears in no hurry to reverse the trial Court, having taken no steps to expedite its appeal.
In the days since the state Court ruling, counties around the state have begun to comply. Many counties have posted notice of their websites that they are accepting vote by mail applications in compliance with Judge Sulak’s ruling. City and school district elections going forward in early May, are accepting vote by mail applications in compliance with Judge Sulak’s ruling. After waiting well more than a week watching the state election apparatus turn to comply with the state court order and after watching tens of thousands of Texans submit vote by mail applications, Defendants appear willing to allow the circumstances where the state’s judicial branch has so far reached one view of the law while, at least part of, the executive branch of state government threatens prosecution for complying with the Court order.
Texas citizens can no longer have confidence that the Executive branch of the state will comply with the Rule of Law. Now, even if the state is never successful in overturning the state court order, the Attorney General has shown he will not comply with orders of his state’s judiciary. Furthermore, Texans will continue to reasonably fear that the executive branch will not comply with state court rulings and/or that they could be subjected to criminal prosecution for attempting to vote by mail. Under these circumstances, the State is no longer functioning to protect the federal rights of U.S. citizens, and even if it to begin to do so, voters can have no confidence their rights will be preserved. Moreover, the behavior of the executive branch of Texas government threatens to upset the state’s election apparatus which is largely complying
1 Herein known as Attorney General Paxton, General Paxton, or AG Paxton.
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with the state court order and where the state is successful in strong arming local officials to defy

the state court order, election procedures throughout the state will be administered non-

uniformly. Because election deadlines are swiftly approaching, this Court should schedule

proceedings to request appropriate preliminary injunctive relief such that a ruling can be

complete by May 15, 2020.

I. Facts

Millions of Texas voters under the age of 65 face a stark choice in the coming elections.

Either they risk infection from a dangerous, often deadly disease by voting in person, or they

vote by mail utilizing the disability excuse provided for under state law, or they are

disfranchised. One level of the judicial branch of state government has ruled that these voters can

vote utilizing the disability excuse while at least one member of the state’s executive branch has

openly defied this ruling and threatened criminal prosecution for voters who rely on this

provision to vote and political actors for engaging in political speech concerning vote by mail.

The plaintiffs rely on the following exhibits to this motion as well as the testimony and

documentary evidence submitted at evidentiary hearing:

Exhibit # - Description Exhibit 1 – State Court Hearing Record Exhibit 2 – OAG Press Release and Opinion Letter Exhibit 3 – State of Texas’s Plea to the Jurisdiction Exhibit 4 – Court Order on T.I.

Summary Transcript of T.I. Hearing Press Release from the Attorney General April 15, 2020 State of Texas’s Plea to the Jurisdiction
Judge Tim Sulak’s Court Order on Temporary Injunction and Plea to the Jurisdiction

A. COVID-19 is an Immediate Danger to all Texans

COVID-19 infection is caused by the SARS-CoV-2 virus and is spread by passing

through mucous membranes. Reported illnesses have ranged from mild symptoms to severe

illness and death. Id. Anyone can be infected with the novel coronavirus. Id. Certain groups, such

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as those over 60 years of age and those with certain underlying medical conditions, are at higher risk of serious illness and death should they be infected. However, data to date in Texas demonstrates higher than expected infection rates in younger persons. Some infected persons do not appear to have any symptoms although they may still be able to infect others. Meanwhile, other people with no pre-existing conditions are dying of stroke without ever displaying the typical COVID-19 symptoms.
Coronavirus is spread through droplet transmission. These droplets are produced through coughing, sneezing, and talking. The virus can be spread when an infected person transmits these droplets to a surface like a polling machine screen. Any place where people gather and cannot maintain physical distancing, such as a polling place, represent a heightened danger for transmission of COVID-19 disease. Id. Crowding and exposure to a range of surfaces at the polls make polling places likely transmission sites for the virus. Id. It is highly likely that COVID-19 will be a threat to the public both in July and through November. See general Ex. 1, Testimony and Declarations of Dr. Carroll and Troisi.
COVID-19 is highly contagious and is quickly becoming one of the leading causes of death in the United States.2 Texas has many cases of the virus. As of April 25, 2020, the highest number of reported cases of COVID-19 in Texas are among 50-59-year-olds and 40-49-yearolds, with 599 reported cases and 572 reported cases, respectively.3 20-29-year-olds represent 426 cases, while those aged 65-74 make up 354 reported cases in Texas. Id. As of April 25, the State has seen 623 deaths from the virus. Id.
2 Dan Keating and Chiqui Esteban, Covid-19 is Rapidly Becoming America’s Leading Cause of Death, WASHINGTON POST (April 16,2020), https://www.washingtonpost.com/outlook/2020/04/16/coronavirus-leadingcause-death/?arc404=true. 3 TEXAS DEPARTMENT OF STATE HEALTH SERVICES, https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc8b83 (last visited April 25, 2020).
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Neither vaccines nor “Herd Immunity” will reduce the threat of COVID-19 transmission anytime soon. No vaccine will be widely, if at all, available for at least 12-18 months. See general Ex. 1, Testimony and Declarations of Dr. Carroll and Troisi. Herd Immunity occurs when a high percentage of people in a community become immune to an infectious disease. Id. at ¶ 15. This can happen through natural infection or through vaccination. Id. In most cases, 8095% of the population needs to be immune for herd immunity to take place. Id. This population requirement makes herd immunity to COVID-19 unlikely to happen before a vaccine is available. Id.
B. Voting by mail is Safe with No Risk of COVID-19 Transmission There is no evidence the virus can be spread by paper, including mail. Id. at ¶ 17. Voting by mail would virus transmission between voters standing in line, signing in, and casting votes as well as eliminate viral transmission through environmental surfaces like voting machines. Id. Due to the pandemic, voting by mail is much safer for the public than voting in person. Id.
C. Voting by Mail in Texas Texas law allows voting by mail for registered voters who meet one of the qualifications stated in the Election Code. See Tex. Elec. Code Ch. 82. A voter is qualified to vote by mail if he (1) anticipates being absent from his county of residence on election day; (2) has an illness or other physical condition that disables him from appearing at the polling place; (3) is 65 or older; or (4) is confined in jail. Tex. Elec. Code §§ 82.001-4. Voters apply to vote by mail with a mail ballot application sent to the early voting clerk. The early voting clerk is responsible for conducting early voting and must “review each application for a ballot to be voted by mail.” Tex. Elec. Code § 86.001(a). An early voting ballot application must include the applicant's name and the address at which the applicant is registered to vote and an indication of the grounds
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for eligibility for voting by mail. Tex. Elec. Code § 84.002. Mail ballot applications are certified by the applicant that “the information given in this application is true, and I understand that giving false information in this application is a crime.” Tex. Elec. Code § 84.011. It is a crime to “knowingly provide false information on an application for ballot by mail.” Tex. Elec. Code § 84.0041.
If the clerk determines the applicant is entitled to vote by mail, the clerk shall provide the voter a ballot by mail. Tex. Elec. Code § 86.001. If the voter is not entitled to vote by mail, the clerk shall reject the application and give notice to the applicant. Id. A rejected applicant is not entitled to vote by mail. Id. July 3 is the deadline for an early voting clerk to receive an application to vote by mail for the upcoming July 14, 2020 Democratic Party Run off. Tex. Elec. Code § 84.007 (c). Mail ballots are expected to start being sent to voters in response to their request, on May 24, 2020. Thousands of vote by mail applications are pouring in now.
D. The Parties The Texas Democratic Party (“TDP” or “the Party”) is a political party formed under the Texas Election Code. The TDP is the canvassing authority for many of the imminent run-off elections to be held on July 14, 2020. The election of July 14 is, in part, to determine runoff elections and therefore award the Democratic Party Nominations to those who prevail. TDP is the political home to millions of Texas voters and thousands of Texas’ elected officials. The TDP expends resources to try to help its eligible voters vote by mail. TDP is injured by the uncertainty of the laws associated with voting by mail because of the expenditure of financial resources used to help its members vote by mail, and the potential disfranchisement of its members. TDP is harmed by the state forcing it to award its nominations in an un-democratic process.
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Gilberto Hinojosa is the elected Chair of the TDP. He is one of the administrators of the upcoming run-off elections for the Texas Democratic Party. He is the head of the canvassing authority for the July run-off elections and is the leader of the Party by and through his statutory and rule-based powers. Chair Hinojosa is also a registered voter in Texas. Chair Hinojosa is injured by the Defendants, because of the uncertainty of Texas law’s regarding qualifications to vote by mail.
Joseph Daniel Cascino is a Travis County voter, who voted in Democratic primary election on March 3, 2020. He intends to vote by mail in the upcoming run-off elections and general elections. He is not 65 years of age. He intends to be in Travis County during the early vote period and Election Day. He has not been deemed physically disabled by any authority. He wishes to vote by mail because of the risk of transmission by COVID-19 at polling places.
Shanda Marie Sansing is a Travis County voter, who has voted in Democratic primary, run-off elections and general elections in the past. She intends to vote by mail in the upcoming run-off elections and general elections. She is not 65 years of age. She intends to be in Travis County during the early vote period and Election Day. She has not been deemed disabled by any authority. She wishes to vote by mail because of the risk of transmission by COVID-19 at polling places.
Brenda Li Garcia is a Bexar County voter, who has voted in Democratic primary, run-off elections and general elections in the past. She intends to vote by mail in the upcoming run-off elections and general elections. She is not 65 years of age or older. She intends to be in Bexar County during the early vote period and Election Day. She has not been deemed disabled by any authority. She wishes to vote by mail because of the risk of transmission by COVID-19 at polling places.
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The Honorable Gregg Abbott is the Governor of Texas and a defendant in this case. He is the chief executive officer in this State. Tex. Const. Art. IV § 1. Gov. Abbott has injured the plaintiffs by acting with discriminatory intent to make it much less likely that the plaintiffs will cast a vote in the upcoming elections during this pandemic.
The Honorable Ruth Hughs is the Secretary of State of Texas and its chief election officer. Tex. Elec. Code § 31.001. Secretary Hughes has injured the plaintiffs by creating a lack of clarity and probable lack of uniformity in application of the election laws relating to mail ballot eligibility throughout the State.
The Honorable Ken Paxton is the Attorney General of Texas and its chief legal officer. Tex. Const. Art. IV § 22. The Attorney General of Texas may investigate and assist local jurisdictions in prosecuting election-related crimes. Tex. Elec. Code §§ 273.001 (d); 273.002. Recently, General Paxton has issued a letter threatening “third parties [who] advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code.” General Paxton has created a lack of clarity and probable lack of uniformity in application of the election laws relating to mail ballot eligibility throughout the State. Id. General Paxton’s letter also threatens U.S. citizens for exercising their Right to Vote.
The Honorable Dana DeBeauvoir is the Travis County Clerk. She is the early voting clerk for the upcoming run-off and general elections. Pursuant to the advice issued by General Abbott in his April 14, 2020 letter, Clerk DeBeauvoir may not issue mail ballots to voters seeking a mail ballot because of the physical risk of COVID-19. However, Clerk DeBeauvoir has also been ordered by a Texas district court to issue voters like the plaintiffs a mail ballot for this reason.
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Ms. Jacquelyn Callanen is the elections administrator for Bexar County. She is the administrator of the run-off and general elections in Bexar County. She is the early voting clerk that will grant or deny mail ballots to applicants in the coming elections.
E. Election Officials Need Clarity to Prepare for Imminent Elections Governor Abbot has set both the date of the special election for Senate District 14 in Bastrop and Travis County and the Democratic Primary Run-Off election in all 254 Counties on July 14, 2020. During the primary or for the November General Election state election law requires all ballot information be complete by 74 days before the election. During that time, clerks must do all of the following: • proof ballot submissions, order races appropriately, merge with many jurisdictions appearing on the ballot; • work with ballot companies to lay out for printing multiple ballot styles; • program ballot scanners, controllers, and related technology; • prepare ballot carriers for vote by mail applications and returned ballots for the use of signature verification committees and ballot boards; • hire election workers for polling locations, early voting locations, and central counting; • train all workers; • determine polling locations for election day and early voting, negotiate contracts with locations; • manage payroll issues of dozens to thousands of temporary workers; and,
• manage delivering and picking up equipment while keeping it secure and free from
tampering before, during and after the polling locations open and close.
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Id. Most election clerks and election administrators will need at least 74 days to complete these tasks. 74 days from July 14, 2020 is May 1, 2020.
F. Sequence of Events Since the Outbreak in Texas By mid-March, Texas had more than 30 confirmed cases of COVID-19 located in multiple counties. On March 13, 2020, Governor Abbott declared that COVID-19 poses an imminent threat of disaster. On March 19, 2020, Dr. John W. Hellerstadt, Commissioner of the Department of State Health Services declared a state of public health disaster. The disaster demanded that people not gather in groups larger than 10 members and limit social contact with others by social distancing or staying six feet apart. On March 19, 2020, the Governor closed schools temporarily. He also closed bars and restaurants, food courts, gyms and massage parlors. On April 27, 2020, Governor Abbott issued a new order that purports to open the state’s business affairs, in “phases.” The Governor has indicated that case testing will be monitored and that if and when cases begin to increase, the opening will be slowed and/or reversed. Dr. Deborah Leah Birx, the Coronavirus Response Coordinator for the White House Coronavirus Task Force, has stated that “social distancing will be with us through the summer to really ensure that we protect one another as we move through these phases.”4 While addressing the pandemic, the state orders referenced above made no effort to protect the votes of millions of Texans during this pandemic. An advisory issued by the Secretary of State’s Office instructed counties to begin preparing for larger than normal vote by mail while also giving guidance to local officials to seek court orders, as appropriate, to adjust election procedures. In order to seek clarity of the requirements of state law, some of these Plaintiffs sought declaratory and injunctive relief in Texas district court in Travis County. Texas
4 https://www.washingtonpost.com/politics/social-distancing-could-last-months-white-house-coronaviruscoordinator-says/2020/04/26/ad8d2f84-87de-11ea-8ac1-bfb250876b7a_story.html
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Democratic Party, et al. v. DeBeauvoir, et al., No. D-1-GN-20-001610 (201st Dist. Ct., Travis Cnty., Tex. filed March 20, 2020).5 Texas intervened and asserted a plea to the jurisdiction based on standing, ripeness, and sovereign immunity. Ironically, Texas argued in its Plea to the Jurisdiction that vote by mail administration is a county level decision.6 On April 15, the state court heard the plaintiffs’ temporary injunction motion and Texas’ plea to the jurisdiction. The state court verbally announced the denial of the plea to the jurisdiction and the granting of the temporary injunction.
In response to the order, the Attorney General made public a letter he had sent to the Chair of the House Committee on Elections of the Texas House of Representatives. In the letter, General Paxton gave a non-official, advisory opinion regarding whether or not the risk of transmission of COVID-19 would entitle Texas voters to cast a mail-in ballot. “We conclude that, based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail.” It did so, literally in defiance of a judicial order being announced.
Making it clear that Texas would not be bound by the state district court’s ruling, General Paxton stated:
“I am disappointed that the district court ignored the plain text of the Texas Election Code to allow perfectly healthy voters to take advantage of special protections made available to Texans with actual illness or disabilities. This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud. Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without needing assistance or jeopardizing their health. Fear of contracting
5 Initially, the State of Texas was also sued. After being sued, Texas made it clear that it believed that the state court did not have jurisdiction to consider the filed claims against the State. Responding to Texas’ belief, the plaintiffs non-suited their claims against Texas on March 25, 2020. 6 Exhibit 15.
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COVID-19 does not amount to a sickness or physical condition as required by state law.”
This statement and the actions of the State have added to the terrible uncertainty that voters and early voting clerks face in administering upcoming elections. As of April 25, 2020, Texas has 23,773 reported cases of COVID-19.7
To make matters worse, Attorney General Paxton threatened political speech by TDP and other political actors in the state. “To the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041.” The public statements and actions of the Attorney General reveal that voters should have a reasonable fear that they will be prosecuted. Given the public statements by General Paxton and his track record, a voter would reasonably fear that he or she would face criminal sanction if he or she checks the disability box on a mail ballot application because of the need to avoid the potential contraction of the virus. Id.
G. Texas is a Large, Diverse State Whose Voters Need Protection As of July 1, 2019, there are 28,995,881 Texans.. People over the age of 65 are 12.6% of the population or about 3,653,481 people. Children below the age of 18 are 25.8% of the population or 7,480,937 people. Texans between age of 18 and 65 are 61.6% of the population or 17,861,463 people. On January 23, 2020, the Secretary of State announced that Texas had set a new state record of registered voters with 16,106,984 registered voters. Id.
7 TEXAS DEPARTMENT OF STATE HEALTH SERVICES, https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc8b83 (last visited April 25, 2020).
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Texas is a racially diverse state. U.S. Census data show that Anglos make up 41.5% of

the population. These demographic trends are shown in the following tables.

Table 1 – Texas Racial Demographic Totals & Percentages

Demographic Anglo Latino African American Asian American

Percentage 41.5% 39.6% 12.8% 5.2%

Number 12,033,290 11,482,368 3,711,472 1,507,785

Table 2 – Number of Texans by Age & Race (July 1, 2018)

Age
Children (under 18) Voting Age (18 - 65) Elderly (65 or older) Totals

Total 7,350,017

Anglo 2,298,822

Latino

African

American

3,618,258 859,927

17,714,919 7,419,262 6,829,660 2,200,787

3,637,307 2,290,219 840,003 334,258

28,702,243 12,008,303 11,287,921 3,394,972

Asian

Other

American

315,789 257,221

936,019 329,191

130,091 42,736

1,381,899 629,148

62.9% of Texans who are 65 years of age or older are Anglos. The average age of all Texas Anglos is 41.5 years old. Anglos are only 41.8% of Texans 18 to 65 years of age. Elderly Anglos outnumber elderly Latinos nearly 3 to 1. Elderly Anglos outnumber elderly African Americans nearly 7 to 1.
Election regulations and prosecutions that have the effect of burdening the right to vote based on the voter’s age, necessarily has a racially discriminatory impact.
Elections in Texas are racially polarized in all or nearly all levels of state elections. The Anglo majority statewide votes as a bloc against the minority preferred candidate. Minority voters vote as a bloc for their preferred candidates. Anglos vote in sufficiently large numbers and in concert to defeat the minority-preferred candidate most of the time. Texas campaigns have

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been typified by racial appeals and minority-preferred candidates are rarely, if ever, successful. Socio-economic disparities exist in Texas that impact the ability of the minority community to influence state officials, state elections and state policy. Elected officials are not responsive to the needs of the minority community. Finally, Texas has long and despicable history of disfranchisement and racial discrimination..
II. Preliminary Injunction In order to secure a preliminary injunction, a plaintiff must establish the following four elements: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
Plaintiff has Established a Likelihood of Success on the Merits The Plaintiff seeks a preliminary injunction pursuant to its as-applied claims relating to: (1) the 26th Amendment of the U.S. Constitution; (2) vagueness in violation of the “Due Process” clause of the 5th and 14th Amendment; (3) voter intimidation in violation of 52 U.S.C. § 10307(b); and (4) the First Amendment of the U.S. Constitution. A. Plaintiffs will Succeed on their 26th Amendment Claim8 Plaintiffs are likely to prevail on their claim that the Attorney General’s interpretation of state election law discriminates against young voters on account of age, in violation of the
8 Plaintiffs seek a preliminary injunction on the as-applied 26th Amendment claim. To the extent that the state is purporting, in these pandemic circumstances, to apply different voting burdens based on the voter’s age, that condition does not comply with the 26th Amendment. Plaintiffs also claim that the 26th Amendment prohibits limiting vote by mail by age, even when not under pandemic circumstances but such a claim is preserved for a final trial on the merits.
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Twenty-Sixth Amendment. The Twenty-Sixth Amendment forbids abridging or denying the voting rights of young voters by singling them out for disparate treatment. See Jolicoeur v. Mihaly, 5 Cal.3d 565, 575 (1971); see also Ownby v. Dies, 337 F. Supp. 38, 39 (E.D. Tex. 1971) (holding Twenty-Sixth Amendment violated by statute that required heightened standard for individuals under 21 to establish residency for voting); U.S. v. Texas, 445 F. Supp. 1245, 1257 (S.D. Tex. 1978). The Twenty-Sixth Amendment tracks language of the Fifteenth, which forbids intentional efforts to deny or abridge the right to vote on account of race. Compare U.S. Const. Amend. XXVI, with U.S. Const. Amend. XV.
i. Paxton’s interpretation of Tex. Elec. Code § 82.003 Fails Strict Scrutiny Claims under the Twenty-Sixth Amendment must be evaluated by this court under strict
scrutiny, and Tex. Elec. Code §§ 82.003 is prima facie discriminatory. See U.S. v. State of Tex., 445 F. Supp. 1245,126 (S.D. Tex. 1978), aff’d sub nom. Symm v. United States, 439 U.S. 1105 (1979) (When determining whether the Whatley registrar violated the Twenty-Six Amendment, the Court found that “before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.”) It is precedent of the Supreme Court to apply strict scrutiny to a statute or practice that is “patently discriminatory on its face.” Lynch v. Donnelly, 465 U.S. 668, 687 n. 13 (1984). Under strict scrutiny analysis, the burden is on the State to justify that its policy, statute, or decision is narrowly tailored to serve a compelling state interest. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 475 (2006).
Texas’ election law cannot meet this standard. Texas’ law discriminates on its face against younger voters by creating two classes of voters: those 65 or older and are able to access absentee ballots and those under 65, who generally cannot. While the state Court has ruled that
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under age 65 voters can use the disability exemption to vote absentee, the Attorney General has threatened to prosecute those who engage in this activity. Texas is unable to present a compelling state interest in this discrimination; there is no compelling interest in imposing arbitrary obstacles on voters on account of their age especially when the enacted state law does not clearly demand this result during this pandemic.
All voters are able to contract, spread, and die from the virus, not just the elderly and disabled. If Texas has any compelling state interest here, it is to allow all voters to use mail ballots to avoid the possibility of transmission of COVID-19.
A healthy 64-year-old and a healthy 65-year-old are both equally capable of going to the polls and being dangerously infected with the virus, but only one voter is able to use an absentee ballot because they are simply a year older. There is no discernable difference between these voters besides this one-year age difference.
Further, voters under the age of 65 represent a majority of the COVID-19 cases in Texas. As of April 25, 2020, the highest number of reported cases of COVID-19 in Texas are among 50-59-year-olds and 40-49-year-olds with 599 reported cases and 572 reported cases respectively. Exhibit 3.9 There are more reported cases of COVID-19 in Texas among 20-29year-olds than those of 65-75 years of age. Id. 20-29-year-olds comprise 426 cases, while those aged 65-74 make up only 354 reported cases in Texas. Id.
ii. Alternatively, Paxton’s Interpretation is Unconstitutional Using the Test in Arlington Heights
Alternatively, some federal courts have chosen to use the Arlington Heights framework to access Twenty-Six Amendment claims. See e.g. One Wis. Inst., Inc. v. Thomsen, 198 F.Supp.3d
9 TEXAS DEPARTMENT OF STATE HEALTH SERVICES, https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc8b83 (last visited April 25, 2020).
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896, 926 (W.D. Wis. 2016) (Finding that the Twenty-Sixth Amendment's text is "patterned on the Fifteenth Amendment ... suggest[ing] that Arlington Heights provides the appropriate framework.”); Lee v. Va, State Bd. of Election, 188 F. Supp.3d 577, 609 )E.D. Va. 2016), aff’d, Lee 843 F. 3d 592 (4th Cir. 2016); League of Women Voters of Fla. v. Detzner, 314 F. Supp.3d 1205, 1221 (N.D. Fla 2018). The Arlington Heights framework is well-settled law, evaluating: (1) the impact of the official action and whether it bears more heavily on one group than another; (2) the historical background of the decision; (3) the specific sequences of events leading up to the decision challenged in the case, including departures from normal procedures in making decisions and substantive departure; and (4) contemporary statements made by the governmental body who created the official action. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
Here the challenged action is two-fold. First, Paxton’s interpretation of the law related to mail ballot eligibility in Texas is discriminatory to every voter under the age of 65 and untenable given the COVID-19 pandemic. Second, the official decision by the Attorney General to threaten to enforce that law in the most disenfranchising and severe manner possible, through criminal sanction, is strong evidence of invidious discrimination. All voters face significant risk of transmission of the novel coronavirus at polling locations. Texas’ law has a disparate effect on younger voters because they will be unable to access mail ballots and are, therefore, forced to risk their lives, the lives of their loved ones, and the lives of the public at-large in order to vote. This risk is imminent and tangible. As seen in Wisconsin, several cases of COVID-19 have been directly linked to in-person voting.10 During the COVID-19 pandemic, Texas’s refusal to extend
10 Veronica Stracqualursi and Abby Phillip, 19 Coronavirus Cases Connected to Wisconsin Primary Election, State Health Official Says, CNN (April 22, 2020), https://www.cnn.com/2020/04/22/politics/wisconsin-april-7-electioncoronavirus-cases/index.html.
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access to mail ballots to younger voters would affirmatively disenfranchise hundreds of thousands of Texas voters simply because of their age. Of course, voters over the age of 65 will not face these same burdens on the right to vote; they are able to avoid crowded polling locations and cast their ballot from the safety of their homes. The application of the law in this manner absolutely “bears more heavily on one group” —an age group—“than another.” Arlington Heights at 266.
There have also been significant departures from normal procedures resolving the meaning of state election law. In order to alleviate this discriminatory effect, some of the above plaintiffs brought suit against an election authority and obtained temporary relief from a state court, which held that all Texas voters are entitled to obtain a mail-in ballot because of the health risk involved in voting in person. Directly after voters were granted this relief, and in response to this relief, Attorney General Paxton issued an advisory, non-official opinion threatening to prosecute people and groups who complied with the state court ruling. He called the ruling an “unlawful expansion of mail-in voting.” Further, he opined that to help or advise a voter to seek a mail-in ballot pursuant to this provision of the Election Code was a crime. Despite these opinions, he has taken no urgency in obtaining such a ruling from a higher court and instead, he threatens the public with criminal prosecution. These are abnormal departures from normal legal or policy procedure for multiple reasons. First, the Attorney General has no authority to offer an “informal letter of legal advice offered for the purpose of general guidance.” The Attorney General rarely, if ever, “opine[s] through the formal opinion process on questions … that are the subject of pending litigation.”. Second, it is uncommon that a modern Attorney General would threaten voters and voting groups explicitly for working to help lawful voters cast ballots in the safest manner possible. Finally, General Paxton circumvented the entire Texas judicial process
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by announcing as the Court was ruling, that he would criminally prosecute voters in defiance of the emerging court order. The only legitimate course of action for the Attorney General to void a Texas court order is to allow the trial court to issue its order, appeal the order for a stay, and then proceed expeditiously on appeal to make the best case for the order to be overturned. Even if it is true that the state court order was automatically stayed by General Paxton’s appeal, the order remained in effect for Travis County and other counties, cities, and school districts which are following it. General Paxton has followed no legal channel to curb this election activity. Instead, he disrespected the judicial process in order to chill voter’s ability to access the ballot. These significant departures from normalcy were all in service of preventing legal, registered voters from casting ballots without exposing themselves to a deadly virus.
General Paxton offered a bizarre and unfounded rationale for this abnormal behavior, which only bolsters the notion that he intended his actions to disenfranchise voters. He stated that allowing Texans to vote by mail because of the risk of transmission of COVID-19 “will only serve to undermine the security and integrity of our elections and to facilitate fraud.” These explanations are internally contradictory and irrational. Either mail-in balloting offers special protections for the aged and infirm or it is a vector for election fraud. It cannot be both.
Under the pandemic circumstances, Texas’ age-based classification system for mail ballot eligibility bears more heavily on voters younger than 65 years of age. Even in this age of pandemic, Texas is undeterred in its aggressive intention to police mail ballot eligibility in the strictest possible way, with highest discriminatory effect. The state executive branch has shown no interest in complying with the rulings of its state judiciary and does not even bother to expeditiously overturn a ruling that at least part of the executive branch, evidently disagrees. As a result, hundreds of thousands if not millions of Texans must face the risk of possible criminal
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prosecution or submit to face life or death burdens because of the risk of transmission of COVID-19 at polling locations.
When in-person voting becomes physically dangerous, age-based restrictions on mail ballot eligibility become constitutionally unsound. “If a unanimous Senate, near-unanimous House of Representatives, and 38 ratifying states intended the Twenty-Sixth Amendment to have any teeth, then the Amendment must protect those blatant and ‘unnecessary burdens and barriers’ on young voters' rights.” League of Women Voters of Fl, Inc. v. Detzner, 314 F. Supp. 3d 1205, 1223 (N.D. Fl July 24, 2018), quoting Worden v. Mercer Cty. Bd. of Elections, 61 N.J. 325, 345 (1972). Here, the discrimination is a blatant and unnecessary barrier to younger voters, enforced simply because the State does not want these voters to access mail voting during a deadly pandemic. As such, the plaintiffs will prevail on their Twenty-Sixth Amendment claim.
B. The Plaintiffs Will Succeed on Their Denial of Free Speech Claim Paxton’s letter opinion is presently harming core political speech. Indeed, the very letter he issued, threatens political speech with criminal prosecution. TDP, as well as other political actors, would be engaging in communications with voters concerning who is eligible to and how to vote by mail. Paxton has outwardly threatened to prosecute these communications but he has made no real effort to expeditiously settle the state law legal question of his interpretation of the state law. Even if he did, given the state’s division of criminal and civil jurisdictions between its courts, it is unclear if a higher ruling in a civil case would give meaningful relief to people fearful of prosecution. At the same time, Paxton has argued that the vote by mail statutes are up to the county election administrators. These conditions are designed to prevent political speech and they have been effective at doing so.
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Voters also enjoy a “Right to Vote” as a form of political speech. This political speech is also harmed by Paxton’s interpretation of Tex. Elec. Code §§ 82.001–4. It is widely recognized that political speech, including the right to vote, is strongly protected as a “core First Amendment activity.” League of Women Voters of Fl., 863 F. Supp.2d at 1158. When determining whether there has been a violation of this right, the court inquires as to (1) what sort of speech is at issue, and (2) how severe of a burden has been placed upon the speech. See Burdick v. Takushi, 504 U.S. 428, 433 (1992). Strict scrutiny is applied if the law “places a severe burden on fully protected speech and associational freedoms.” Lincoln Club of Orange County v. City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002).
First, the speech at issue here is the highest form of political expression, casting a vote. While the Supreme Court has applied a rational basis review to state laws prohibiting write-in voting, Burdick, 504 U.S. 428 (1992), the burden at issue in the present case is on the ability to cast a ballot at all. “[V]oting is of the most fundamental significance under our constitutional structure,” meaning the speech at issue is undeniably fully protected First Amendment activity. Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Second, the burden on this speech is heavy. Voters are, off and on, ordered to stay at home to avoid transmission of COVID-19. To go to the polls is to risk exposure and transmission of the deadly virus. Especially given the visibility of the fallout from the Wisconsin primary election, voters are deeply discouraged from emerging from their homes to participate in democracy. As voters face the choice between casting their ballot and paying the ultimate price, there can be no doubt that their political speech is heavily burdened. Because the speech at issue is fully protected First Amendment activity and the burden on this speech is heavy, the court should apply strict scrutiny. For the reasons stated under (A)(i) and (F)(i) of this Section, Tex. Elec. Code §§
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82.003–4 fails strict scrutiny; it is not narrowly tailored to serve compelling government interests. As such, plaintiffs are likely to succeed on their First Amendment claim.
C. The Plaintiffs Will Succeed on their Void for Vagueness Claim TDP and some of these plaintiffs maintained in the state court proceeding that state law clearly allows all voters, regardless of age, to vote by mail because they have a disability based on the risk of transmission of COVID-19. A state court agreed that a plain reading of Texas election law. General Paxton evidently holds a different interpretation. These factual conditions result in an environment where the public cannot reasonably determine what state law allows. The consequences to this indeterminacy are dire. If voters seek a mail-in ballot, then General Paxton threatens prosecution. If they do not, they risk the spread of the virus in order to vote in person. Texas law allows voters to vote by mail on account of a disability. Tex. Elec. Code § 82.002(a). Disability is defined as a physical condition that prevents the voter from appearing at the polling place on Election Day without a likelihood of injuring the voter's health. Id. According to Judge Sulak, this definition includes people who are social distancing because of COVID-19. Prior to the pandemic, General Paxton has advised that no specific definition of disability is required to be met in order to qualify to vote by mail. Op. Tex. Att’y Gen. No. KP0009 (2015). General Paxton has also previously opined that a court-ruled sexual deviant under the age of 65 meets the definition of “disabled” under this statute. Op. Tex. Att’y Gen. No. KP0149 (2017). It is a basic principle of due process that a statutory provision ought to be voided for vagueness if its prohibitions are not clearly defined. Specifically, a statute is unconstitutionally vague under the Fourteenth Amendment if its terms “(1) ‘fail to provide people of ordinary
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intelligence a reasonable opportunity to understand what conduct it prohibits’ or (2) ‘authorize or even encourage arbitrary and discriminatory enforcement.’” Grayned v. City of Rockford, 408 U.S. 104, 108–09, (1972); Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 2556-58, 192 L.Ed.2d 569 (2015); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972); Kolender v. Lawson, 461 U. S. 352, 357– 358 (1983). Importantly, when a vague statute infringes upon basic First Amendment freedoms, as does Tex. Elec. Code §§ 82.003–4, “’a more stringent vagueness test should apply.’” Grayned, 408 U.S. at 246. While civil enactments, as opposed to criminal ones, are subject to less strict vagueness standards, General Paxton has suggested that advocating for an expanded definition of disability in relation to obtaining a mail-in ballot “could subject … parties to criminal sanctions.” Exh. 7; See e.g. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498–499 (1982). If criminal prosecution hinges on the definition of disability in the Election Code, that weighs in favor of a higher vagueness standard because “the consequences of imprecision are … severe.” Hoffman at 498-499.
Paxton’s interpretation leaves Tex. Elec. Code § 82.001–4 as vague because it is not clear which voters qualify to vote by mail under its provisions. According to these statutes, a voter is qualified to vote by mail if he (1) anticipates being absent from his county of residence on election day; (2) has an illness or other physical condition that disables him from appearing at the polling place; (3) is 65 or older; or (4) is confined in jail. Tex. Elec. Code §§ 82.001–4. More specifically, condition (2) is met when “the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Tex. Elec. Code § 82.002(a). There are two operative parts to this definition. First, the voter must have “a sickness or physical condition.” Second, this condition requires the voter to determine whether voting in person has a
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likelihood of injuring the voter’s health. Both parts are impermissibly vague. A voter might reasonably consider susceptibility to a deadly virus as a “physical condition” and contraction of that virus has a likelihood an injury to their health.
General Paxton interpreted the statute differently. For instance, he chooses to define “condition” as “an illness or other medical problem”. (citing the New Oxford Am. Dictionary 1341(3d ed. 2010)). The Legislature cannot have intended to define condition as “a sickness or medical problem” because that would be duplicative of other parts of the statute (i.e., “sickness” would appear twice).11 General Paxton also stated that “mental or emotional condition[s]” do not qualify a voter to vote by mail. This would preclude voters suffering from severe post-traumatic stress disorder or agoraphobia (fear of being in public and/or crowds) from qualifying for a mailin ballot. (This new interpretation also undermines that entire rationale Paxton gave in his official AG Opinion finding that sexual deviants can vote because of their mental condition.) General Paxton’s construction of the statute is implausible both because it results in surplus language in the statute and because it is hardly consistent with its plain meaning. Yet these multiple constructions (coupled with Paxton’s threat of prosecution) lend substantial vagueness as to what voters qualify to vote by mail under its provisions.
Even the statute under which General Paxton proclaimed voters and third parties might be prosecuted is impermissibly vague. General Paxton threatened these parties with prosecution under Tex. Elec. Code § 84.0041. Tex. Elec. Code § 84.0041 provides that a person commits an offense if the person “(1) knowingly provides false information on an application for ballot by mail;” or “(2) intentionally causes false information to be provided on an application for ballot
11 It also would mean that “likely confinement for childbirth” would have been considered “a sickness or medical problem” by the Legislature. See Tex. Elec. Code § 82.002 (b). Pregnancy is neither a sickness nor medical problem, so it cannot be that the statute was meant to only authorize voters suffering from some physical malady to access mail voting.
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by mail.” § 84.0041(a)(1)–(2). Given the conflicting orders from the state court and the Attorney General, it is simply impossible to know what qualifies as “false information” under the statute. The breakdown of the Rule of Law in Texas has generated two opposing legal schemes: one in which voters who fear COVID-19 qualify to vote by mail by order of the state judiciary, and one in which the executive branch subjects them to criminal prosecution for doing so. Voters cannot know which reality is their own. General Paxton unhelpfully advised: “whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.” Not only would any voter find this proclamation vague, but it encourages arbitrary enforcement.
These statutory provisions are impermissibly vague on their face and General Paxton’s communication with the public has lent substantial murkiness as to what voters and enforcement officials are permitted to do. This lack of clarity has the effect of leading “citizens to “steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.’” Grayned v. City of Rockford, 408 U.S. at 109. It will also create uneven prosecution of voters and third parties between jurisdictions throughout the State. This provision is especially troublesome because it infringes upon core First Amendment activity. Thus, Plaintiffs have a likelihood of success on the merits of their void for vagueness claim.
D. Voter Intimidation General Paxton has made the extraordinary choice to upend the rule of law, disturb the state judiciary from fulfilling its mission, and to outwardly intimidate rightful voters and the third parties who assist voters in elections. “[T]o the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041.” This
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advisory opinion was made just as a state court ruled that Texas voters are entitled to a mail-in ballot because of the risk of transmission of COVID-19. Hours later, General Paxton stated that expanding mail ballot eligibility to all Texans “will only serve to undermine the security and integrity of our elections.” These statements operate to discourage voters from seeking mail-in ballots because of their fear of criminal sanction or victimization by fraud.
“Title 42 U.S.C. § 1985, part of the Civil Rights Act of 1871, creates a private civil remedy for three prohibited forms of conspiracy to interfere with civil rights under that section.” Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010). Plaintiff must prove the following elements for a claim under § 1985(3): (1) a conspiracy of two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or deprives her of a right or privilege of a United States citizen. See Hilliard v. Ferguson, 30 F.3d 649, 652– 53 (5th Cir. 1994); Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987).
General Paxton has worked in concert with employees, including the signatory to the letter in question and others, in issuing his threats. These statements have the intention and the effect of depriving legal voters their franchise. It goes without saying that “[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote.” 52 U.S.C. § 10307 (b). Making a threat is an act in furtherance of this conspiracy to deprive access to the franchise from legal, rightful voters. An injury is caused when a state official acting in concert with others prevents legal voters from
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casting a ballot free from fear of risk of transmission of a deadly illness or criminal retribution. General Paxton must be enjoined from threatening voters with criminal prosecution and spreading misinformation about access to mail-in ballots.
E. The Defendants Violated the Equal Protection Clause of the 14th Amendment The Defendants, who are state actors and/or acting under color of law as administrators of elections, have violated the Fourteenth Amendment Equal Protection Clause because the state is treating similarly situated voters differently from one another. The Equal Protection Clause “is essentially a mandate that all persons similarly situated must be treated alike.” Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). When a “challenged government action classifies or distinguishes between two or more relevant groups,” courts must conduct an equal protection inquiry to determine the validity of the classifications. Qutb v. Strauss, 11 F.3d 488, 491 (5th Cir. 1993). Texas’ has violated the equal protection clause in two ways: 1) it has created an unconstitutional burden on the fundamental right to vote; and 2) this burden is also racially discriminatory. i. Unconstitutional Burden on the Right to Vote under Anderson-Burdick In Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966) the Court held that voting is a fundamental right. As such, state election laws or enactments that place a burden on the right to vote will be evaluated under the Anderson-Burdick analysis, in which a court weighs “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by the rule.” Burdick v. Takushi, 504 U.S. at 434. If the burden on the right to vote is severe, a court will apply strict scrutiny; if the burden is minimal, a court will weigh the burden against the state’s interest under rational
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basis review. Id. To survive strict scrutiny, a classification created by the state must promote a compelling governmental interest, and it must be narrowly tailored to achieve this interest. Plyler v. Doe, 457 U.S. 202, 216-17 (1982). “However slight [the] burden may appear . . . it must be justified by relevant and legitimate state interests ‘sufficiently weight to justify the limitation.’” Crawford v. Marion Ct. Election Bd., 553 U.S. 181, 191 (2008).
The burden placed on the voting rights of Texas voters is both disproportionate across all voters and extremely severe. First, it is only voters under the age of 65 that are burdened by Paxton’s interpretation of Tex. Elec. Code § 82.003. These voters also comprise more COVID19 cases than voters over the age of 65 in Texas. The Crawford Court determined that [disparate impact] “‘matters’ in the Anderson-Burdick analysis ... whether the effects of a facially neutral and nondiscriminatory law are unevenly distributed across identifiable groups.” League of Women Voters of Fla., Inc., v. Detzner, 314 F. Supp. 3d 1205, 1216 (N.D. Fla. 2018). It is clear that the effects of the law are unevenly distributed to voters under the age of 65. Since the magnitude of the injury is severe and disproportionate across all voters, these voters are entitled to strict scrutiny.
Under strict scrutiny, Texas is unable to supply any legitimate or reasonable interest to justify such a restriction. To deny mail ballots to Texas voters during a pandemic is to force voters to choose between risking their lives and participating in their democracy. Texas has no interest in denying rightful voters the franchise. Quite the opposite, it is a Texas principle that “[a]ll statutes tending to limit the citizen in his exercise of this right should be liberally construed in [the voter’s] favor." Owens v. State ex rel. Jennett, 64 Tex. 500, 502 (1885). General Paxton, however, proffers two interests in order to deny millions of Texans a mail-in ballot: (1) mail-in
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ballots are a special protection for the aged or disabled and (2) mail ballots enable election fraud. These justifications are hypocritical, contradictory, baseless and non-compelling.
First, the special protections afforded the aged or disabled are also afforded to other voters, including those voters who will be out of the County during Election Day and the early vote period. Tex. Elec. Code § 82.001. It also includes those voters confined in jail. Tex. Elec. Code § 82.004. It includes those voters who have been civilly committed for sexual violence. Op. Tex. Att’y Gen. No. KP-0149 (2017). It applies to those confined for childbirth. Tex. Elec. Code § 82.002(b). To begin with, these categories of mail ballot eligibility are not narrowly tailored to avoid constitutional scrutiny. If offering mail-in voting to sexually violent offenders does not invalidly extend the “special protections made available to Texans with actual illness or disabilities,” then how might allowing voters at risk of COVID-19 infection invalidly extend those purportedly special protections? Second, these concerns contradict each other. If mailballots are a source of rampant vote fraud, then how do they offer “special protections made available to Texans with actual illness or disabilities?” There are built-in protections to ensure the security of Texas mail ballots, including many criminal penalties. If these protections are good enough to offer special protections to some voters, then they are sound enough for all Texas voters. There are no compelling reasons offered by the State to overcome the strict scrutiny required by the Fourteenth Amendment.
Even if this court finds that this statute should only receive a lesser scrutiny, it cannot be found that there is any rational state interest offered by Texas. A state’s interest must be to protect its citizens’ public health and safety. By forcing voters to visit the polls in-person during a global pandemic, Texas ensures that citizens’ health will be put in jeopardy. Nor does Texas have a rational state interest in fencing out from the franchise a sector of the population because
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the way they may vote. “‘The exercise of rights so vital to the maintenance of democratic institutions’ . . . cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents.” U. S. v. State of Tex., 445 F. Supp. 1245, 1260 (S.D. Tex. 1978), aff'd sub nom. Symm v. United States, 439 U.S. 1105, 99 S. Ct. 1006, 59 L. Ed. 2d 66 (1979).
ii. Racial Discrimination The Fourteenth Amendment to the U.S. Constitution prohibits states from treating U.S.
citizens differently based on their race. As applied in this instance, Texas mail-ballot eligibility law functions to create classifications that are invidiously discriminatory. Most mail ballots are provided to Texas’s seniors who are 65 years of age or older. Texas’ population of voters older than 65 is overwhelmingly Anglo, creating a disparate impact on mail ballot eligibility. In the pandemic circumstances, General Paxton’s interpretation of vote by mail statutes results in racially discriminatory effects on racial minority’s right to vote by decreasing turnout of racial minorities and increasing the percentage of the electorate that is Anglo.
Plaintiffs are Irreparably Injured and Outweighs any Harm to the Defendants Voting is a constitutional right for those that are eligible. The violation of constitutional rights for even a minimal period of time constitutes irreparable injury justifying the grant of a preliminary injunction. See Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B. Nov. 1981) (citing, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976); DeLeon v. Perry, 975 F. Supp. 2d 632, 663 (W.D. Tex. 2014), aff’d sub nom. DeLeon v. Abbott, 791 F.3d 619 (5th Cir. 2015) (“Federal courts at all levels have recognized that violation of constitutional rights constitutes irreparable harm as a matter of law.”); see also Mitchell v. Cuomo, 748 F.2d
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804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). In addition, forcing voters to unnecessarily risk their lives in order to practice their constitutional rights while allowing other voters a preferred status so they do not have to face this same burden, is also irreparable injury. There is no harm to the State allowing registered, legal voters the right to vote in the safest way possible. The State has no interest in forcing voters to choose between their wellbeing and their votes. Furthermore, the state has no interest in allowing a situation where the Attorney General can sow confusion, un-even election administration and threaten criminal prosecutions on these circumstances.
Public Interest The public is best served by both preserving the public health of Texans and by fervent and competitive races for public office. It is the public policy of the State of Texas to construe any constitutional or statutory provision which restricts the right to vote liberally. There is no justification nor public interest in denying the ballot to eligible voters. This cannot be put more plainly. Furthermore, it is “always” in the public interest to prevent violations of individuals’ constitutional rights. Deerfield Med. Ctr., 661 F.2d at 338-39. It is also in the public interest not to prevent the State from violating the requirements of federal law. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013). The government has no interest in enforcing an unconstitutional law. N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013). Protecting the right to vote is of particular public importance because it is “preservative of all rights.” See Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (citing Reynolds v. Sims, 377 U.S. 533, 562 (1964)). Plaintiff clearly meets all the requirements necessary for a preliminary injunction.
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III. Abstention Abstention here is not warranted because resolution by the State court will not render this case moot nor materially alter the constitutional questions presented. Plaintiffs allege injury of their Federal constitutional rights in addition to injuries arising from the ambiguity of state law. A Texas state court has already interpreted the ambiguity of Texas’ election code and many counties are complying. Yet, General Paxton’s letter ruling is preventing meaningful political speech, confuses mail ballot applicants and leaves these voters having to risk criminal prosecution if they seek to protect their health by voting by mail. Meanwhile, the state lollygags its appeal of Judge Sulak’s order while thousands of vote by mail applications are being submitted daily and many counties, cities, and school districts are complying with Judge Sulak’s ruling. Under these circumstances, abstaining from exercising federal court jurisdiction is not warranted. Anyway, “[t]he abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers.” Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964). In fact, the stay of federal decision is “an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 1062, 3 L.Ed.2d 1163 (1959) (quoted in Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)). As such, “abstention is the exception rather than the rule...” Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981). Pullman abstention must be “narrow and tightly circumscribed” and is “to be exercised only in special or ‘exceptional’ circumstances.” Duke v. James, 713 F.2d 1506, 1510 (11th Cir.
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1983). But “voting rights cases are particularly inappropriate for abstention,” Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000), because in voting rights cases plaintiffs allege “impairment of [their] fundamental civil rights,” Harman v. Forssenius, 380 U.S. 528, 537 (1965). Abstention is even more inappropriate where the inevitable delay it will cause could preclude resolution of the case before the upcoming elections. Detzner, 354 F. Supp. 3d at 1284 (citing Harman, 380 U.S. at 537).
In this case, time is of the essence—the runoff election is mere weeks away, and the 2020 general election comes not long after. There is no guarantee that state court proceedings will be completed in time and given the Attorney General’s defiance of the state district court ruling, a final state court ruling would not fully vindicate Plaintiffs’ federal constitutional rights.
Even if Defendants’ reading of Tex. Elec. Code § 82.003 was plausible, it is not the sole, mandatory reading of the text, and the constitutional avoidance canon requires that it be rejected. “[W]hen one interpretation of a law raises serious constitutional problems, courts will construe the law to avoid those problems so long as the reading is not plainly contrary to legislative intent.” Pine v. City of W. Palm Beach, Fla., 762 F.3d 1262, 1270 (11th Cir. 2014).
Resolution of the state court case, is neither “dispositive of the case” before this Court, nor would its resolution “materially alter the constitutional questions presented” by Plaintiffs’ claims. Siegel, 234 F.3d at 1174.
Even if the Texas Supreme Court upholds the lower court’s reading of Tex. Elec. Code §§ 82.001–4, and even if the Executive branch of the Texas government complies with this reading, this does not properly counsel for abstention. To find otherwise is to depend upon a series of questionable “mights.” See Wollschlaeger v. Gov. of Fla., 848 F.3d 1293, 1322 (11th Cir. 2017) (relying on U.S. v. Stevens, 559 U.S. 469, 480 (2010), for the proposition that courts
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should not decline to enforce constitutional rights in reliance on the “benevolence” of enforcing officials). And even if this long series of “mights” come to pass, that would not change the constitutional questions presented in this case. Plaintiffs allege that Texas’ election code is prima facie discriminatory in violation of the constitution. Only this Court can resolve this matter.
Abstention would take considerable time and meanwhile, these Plaintiffs’ constitutional speech, right to assemble as a political party and to vote, are all harmed. As it stands, this Court faces a tight schedule for adjudicating this case. Abstention is inappropriate in this case, for the same reason that it is “particularly inappropriate” in voting cases. See Siegel, 234 F.3d at 1174. Constitutional “deprivations may not be justified by some remote administrative benefit to the State.” Harman, 380 U.S. at 542. Therefore, Plaintiffs’ injuries are redressable by this Court and abstention is not appropriate.
IV. Conclusion & Prayer For the foregoing reasons, Plaintiff respectfully requests that Defendants be cited to appear and answer and that the Court take the following actions and grant the following relief: A. Appropriate preliminary injunctive relief to allow the plaintiffs and voters like the plaintiffs to be eligible to receive a mail ballot, to cast that ballot, and to have that ballot counted by the appropriate authority; and, B. To enjoin General Paxton and Defendants from threatening voters or voter groups with criminal or civil sanction for voting by mail or communicating with or assisting voters in the process of vote by mail.
DATED: April 29, 2020
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Respectfully submitted,
TEXAS DEMOCRATIC PARTY
By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC SBN #: 24059153 405 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
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Case 5:20-cv-00438-FB Document 10 Filed 04/29/20 Page 36 of 36 CERTIFICATE OF SERVICE
I certify that, on April 29, 2020, I filed the foregoing Plaintiffs’ Motion for Preliminary Injunction via the Court’s ECF/CM system, which will serve a copy on all counsel of record.
/s/Chad W. Dunn Chad W. Dunn
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 Case 5:20-cv-00438-FB Document 37 Filed 05/12/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas; Ruth

§

Hughs, Texas Secretary of State, Dana

§

Debeauvoir, Travis County Clerk, and

§

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

STATE DEFENDANTS’ RESPONSE TO LULAC AND TEXAS LULAC’S MOTION TO INTERVENE

Plaintiffs filed this case on April 7, 2020. Doc. 1. On April 29, 2020, they filed an amended complaint and motion for preliminary injunction. Docs. 9, 10. On May 3, 2020, the Court set the preliminary injunction for hearing on May 15, 2020. Doc. 15. But it was not until yesterday, May 11, 2020—34 days after Plaintiffs filed suit and four days before the preliminary injunction hearing—that the League of United Latin American Citizens and Texas League of United Latin American Citizens (collectively, “putative intervenors” or “LULAC Intervenors”) moved to intervene in this case. Doc. 30. Not only do they seek, at this late hour, to participate in the preliminary injunction hearing, but they also state an intent to file their own preliminary injunction motion sometime in the next two days, and presumably wish to have that motion heard at the May 15 hearing. The Court should deny this request for at least three reasons.
• First, putative intervenors are not entitled to intervene as of right because they have not shown the requisite adversity of interests. Instead, they seek the very same relief Plaintiffs request.

State Defendants’ Response to Motion to Intervene

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• Second, permissive intervention is inappropriate because it would prejudice the existing parties by complicating the disposition of the case.
• Third, intervention is inappropriate under either standard given putative intervenors’ delay in seeking to intervene. ARGUMENT
A. Putative Intervenors Do Not Have a Right to Intervene. To establish a right to intervene in a lawsuit, would-be intervenors must show that (1) the
application is timely; (2) they have an interest related to the property or transaction that is the subject of the action; (3) the disposition of the action may impair or impede their ability to protect that interest; and (4) none of the existing parties adequately represents that interest. FED. R. CIV. P. 24(a). “Failure to satisfy one requirement precludes intervention of right.” Haspel & Davis Milling & Planting Co. Ltd. V. Bd. of Levee Comms’rs of the Orleans Levee District, 495 F.3d 570, 578 (5th Cir. 2007). A party seeking to intervene bears the burden to establish that he meets these requirements. See Saldano v. Roach, 363 F.3d 545, 551 (5th Cir. 2004).
A “presumption of adequate representation arises” where “the would-be intervenor has the same ultimate objective as a party to the lawsuit.” Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996). To overcome that presumption, “the applicant for intervention must show adversity of interest . . . on the part of the existing party.” Id. To show adversity of interest, in turn, “an intervenor must demonstrate that its interests diverge from the putative representative’s interests in a manner germane to the case.” Entergy Gulf States La., LLC v. U.S. EPA, 817 F.3d 198, 204 (5th Cir. 2016).
Putative intervenors lack a right to intervene because they offer no basis to conclude that Plaintiffs, who have the same ultimate objective in this lawsuit, cannot adequately represent their interests. Indeed, both Plaintiffs and putative intervenors seek to expand Texas’s “vote-by mail eligibility policy in the context of the pandemic.” Compare, e.g., Doc. 30-2 at 21 (LULAC Intervenors’

State Defendants’ Response to Motion to Intervene

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Complaint, seeking universal voting by mail for all voters, “whether or not the voter meets the Eligibility Criteria [in the Texas Election Code] for the duration of the COVID- 19 pandemic”) with Doc. 10 at 34 (Plaintiffs’ complaint requesting relief “to allow the plaintiffs and voters like the plaintiffs to be eligible to receive a mail ballot, to cast that ballot, and to have that ballot counted by the appropriate authority.”). Because Plaintiffs and putative intervenors share the same goal—a mandatory injunction that would allow all voters in Texas to vote by mail—their interests are adequately represented here.
In the face of a presumption of adequate representation, putative intervenors allege only that their interests and Plaintiffs’ are not “identical” and that Plaintiffs may not adequately represent all of LULAC Intervenors’ members. Doc. 30 at 9. This does not meet the burden of showing a divergence of interest within the meaning of Rule 24(a). Although it is true, as putative intervenors note, that the Fifth Circuit has characterized a putative intervenor’s burden as “minimal,” Edwards, 78 F.3d at 1005, that burden “cannot be treated as so minimal as to write the requirement completely out of the rule.” Texas v. United States, 805 F.3d 653, 661 (5th Cir. 2015) (citation and quotation marks omitted).
Allowing LULAC Intervenors to intervene under Rule 24(a) would render the Fifth Circuit’s requirement of an “adversity of interest” completely meaningless. They offer only speculation that, at some point, Plaintiffs’ representation may be inadequate. E.g., Doc. 30 at 9 (conceding that “LULAC Plaintiffs’ interest may overlap the interest of the Party Plaintiffs’ interest,” in this lawsuit, and that “LULAC Plaintiffs’ legal claims overlap in large part with the party Plaintiffs[.]”). And the Fifth Circuit has made clear that “adversity of interest must be shown in the present proceeding and may not be inferred from the possibility of adversity in some future proceeding.” Bush v. Viterna, 740 F.2d 350, 356–57 (5th Cir. 1984). Putative intervenors’ unsubstantiated concern that Plaintiffs may, at some point, not fully represent putative intervenors’ interests—despite their virtually identical claims for

State Defendants’ Response to Motion to Intervene

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relief—does not meet their burden of proof. Accordingly, LULAC Intervenors are not entitled to intervene as of right under Rule 24(a). B. Permissive Intervention is Inappropriate Because it Would Unnecessarily Delay
Adjudication of this Case. Alternatively, putative intervenors seek permissive intervention under Federal Rule of Civil Procedure 24(b). Permissive intervention is permitted upon a timely motion and where there is a common question of law or fact. FED. R. CIV. P. 24(b). But even when these requirements are met, “[p]ermissive intervention is wholly discretionary with the [district] court[.]” New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 470–71 (5th Cir. 1984). LULAC Intervenors note that, as a general matter, this case is in its early stages. State Defendants have not filed an answer or motion to dismiss, no discovery has been conducted, and Plaintiffs filed suit last month. But LULAC Intervenors seek leave not just to intervene, but to actively participate in the hearing on Plaintiffs’ motion for preliminary injunction scheduled for this Friday, May 15. Doc. 30 at 7. LULAC Intervenors state that “[t]o the extent intervention is granted, LULAC Plaintiffs will seek to participate in the preliminary injunction proceedings. LULAC Plaintiffs will file their own preliminary injunction motion within two days of their Motion to Intervene being granted, and do not seek to delay these proceedings nor any other existing deadlines in the case.” Id. at 7 n.1. This untimely intervention would be highly prejudicial to the existing parties’ ability to present a comprehensive defense. State Defendants do not know, of course, what evidence putative intervenors would attach to their motion for preliminary injunction and would have no practical opportunity to rebut it prior to the hearing. For that matter, State Defendants do not know what LULAC Intervenors mean when they state that they will “seek to participate in the preliminary injunction proceedings.” Their participation would only add unnecessary additional parties and issues to a motion hearing that is already fully briefed.

State Defendants’ Response to Motion to Intervene

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Compounding these issues is putative intervenors’ relative delay in seeking to intervene for the purpose of participating in the hearing. Plaintiffs filed their motion for preliminary injunction on April 29, 2020, see Doc. 10, and on May 3, the Court set Plaintiffs’ motion for a hearing on May 15. See Doc. 15. Putative intervenors could have filed their motion to intervene and to participate in the preliminary injunction hearing well before the Monday evening prior to the hearing date. At this late juncture, LULAC Intervenors should not be granted leave to participate in a quickly approaching hearing at which State Defendants must already be prepared to defend against Plaintiffs’ smattering of legal theories and allegations. C. Intervention is Inappropriate Because of Putative Intervenors’ Delay.
The timeliness of a motion to intervene is relevant to both intervention-of-right and permissive intervention. Lucas v. McKeithen, 102 F.3d 171, 173 (5th Cir. 1996). In this Circuit, the timeliness of a motion to intervene turns on four factors:
(1) The length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as it knew or reasonably should have known of its interest in the case; (3) the extent of the prejudice that the would-be intervenor may suffer if intervention is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). As set out supra, putative intervenors’ waited until the eve of the preliminary injunction hearing to move to intervene, so factor 1 counsels against intervention. The second factor also counsels against intervention, which would prejudice existing Plaintiffs by delaying disposition of their claims and prejudice the State Defendants’ ability to adequately prepare for the May 15, 2020 hearing. Under the

State Defendants’ Response to Motion to Intervene

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third and fourth factors, putative intervenors have not identified any interest in this litigation that is
distinct from the existing Plaintiffs’ interest, nor have they identified special circumstances to support
intervention here.
CONCLUSION
The Court should deny LULAC Intervenors’ motion to intervene.
Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Michael R. Abrams MICHAEL R. ABRAMS Texas Bar No. 24087072 ANNE MARIE MACKIN Texas Bar No. 24078898 CORY A. SCANLON Texas Bar No. 24104599 Assistant Attorneys General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 michael.abrams@oag.texas.gov anna.mackin@oag.texas.gov cory.scanlon@oag.texas.gov
Counsel for State Defendants

State Defendants’ Response to Motion to Intervene

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Case 5:20-cv-00438-FB Document 37 Filed 05/12/20 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that on May 12, 2020 a true and correct copy of the foregoing document was served via the Court’s CM/ECF system to all counsel of record.
/s/ Michael R. Abrams MICHAEL R. ABRAMS Assistant Attorney General

State Defendants’ Response to Motion to Intervene

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Case 5:20-cv-00438-FB Document 37-1 Filed 05/12/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia

§

Plaintiffs

§

§

v.

§

§

Greg Abbott, Governor of Texas; Ruth

§

Hughs, Texas Secretary of State, Dana

§

Debeauvoir, Travis County Clerk, and

§

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

ORDER DENYING LULAC AND TEXAS LULAC’S MOTION TO INTERVENE

On this day the Court considered the motion to intervene filed by the League of United Latin

American Citizens and Texas League of United Latin American Citizens. After considering the

motion and any responses, the Court concludes that the motion should be, and hereby is, DENIED.

Signed on this

day of

, 2020.

HON. FRED BIERY UNITED STATES DISTRICT JUDGE

 
 Case 5:20-cv-00438-FB Document 39 Filed 05/12/20 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas; Ruth

§

Hughs, Texas Secretary of State, Dana

§

Debeauvoir, Travis County Clerk, and

§

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division

MICHAEL R. ABRAMS Texas Bar No. 24087072 ANNE MARIE MACKIN Texas Bar No. 24078898 CORY A. SCANLON Texas Bar No. 24104599 Assistant Attorneys General Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Phone: 512-463-2120 Facsimile: 512-320-0667

ATTORNEYS FOR STATE DEFENDANTS

Case 5:20-cv-00438-FB Document 39 Filed 05/12/20 Page 2 of 46
TABLE OF CONTENTS
BACKGROUND ....................................................................................................................................... 2 A. Texas Voters Will Be Able to Safely Cast an In-Person Ballot. ............................................. 2 B. Texas Law Allows Voters to Vote by Mail Only in Limited Circumstances........................ 4 C. The Texas Democratic Party and Others Sued in Travis County Trial Court..................... 5 D. Texas’s Appeal Superseded the State Court’s Temporary Injunction ................................... 6 E. The Texas Democratic Party Brought This Duplicative Lawsuit .......................................... 8 ABSTENTION .......................................................................................................................................... 9 PRELIMINARY INJUNCTION STANDARD ................................................................................ 11 ARGUMENT............................................................................................................................................ 12 A. Plaintiffs Cannot Overcome Sovereign Immunity and Lack Standing ............................... 12
i. Sovereign Immunity ...................................................................................................... 12 ii. Standing........................................................................................................................... 16 B. Plaintiffs Are Unlikely to Prevail on the Merits of Their Twenty-Sixth Amendment or Equal Protection Claims ................................................................................ 19 i. The legal standard.......................................................................................................... 20 ii. Plaintiffs’ Twenty-Sixth Amendment claim fails....................................................... 22
a. Under rational-basis review, Plaintiffs cannot prevail ................................ 22 b. Plaintiffs’ Twenty-Sixth Amendment claim also fails under
Anderson-Burdick ................................................................................................ 24 iii. Plaintiffs’ Equal Protection claims also fails.............................................................. 27
a. Age ..................................................................................................................... 27 b. Race.................................................................................................................... 28 C. The Election Code’s Definition of “Disability” is Not Unconstitutionally Vague ........... 28 D. Attorney General Paxton Did Not Intimidate Plaintiffs or Any Other Voters................. 30 E. Plaintiffs Will Not Prevail on Their First Amendment Claims ............................................ 33 INJUNCTIVE RELIEF AT THIS POINT IN THE ELECTION CYCLE IS IMPROPER.... 34 AN INJUNCTION WOULD UNDERMINE THE PUBLIC INTEREST................................. 35 PLAINTIFFS’ PROPOSED INJUNCTION IS OVERBROAD ................................................... 36 CONCLUSION........................................................................................................................................ 37 CERTIFICATE OF SERVICE ............................................................................................................. 39

State Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction

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TABLE OF AUTHORITIES
Cases Abbott v. Perez,
138 S. Ct. 2305 (2018) ........................................................................................................................... 2, 35 Alexander v. Sandoval,
532 U.S. 275 (2001) ....................................................................................................................................32 Allied Mktg. Group, Inc. v. CDL Mktg., Inc.,
878 F.2d 806 (5th Cir.1989) ......................................................................................................................35 Am. Fed’n of St., Cnty. & Mun. Emps., Council 25 v. Lan1d,
583 F. Supp. 2d 840 (E.D. Mich. 2008)...................................................................................................32 Ammex Warehouse Co. v. Archer,
381 S.W.2d 478 (Tex. 1964).......................................................................................................................7 Anderson v. Celebrezze,
420 U.S. 780 (1983) ....................................................................................................................................20 Ass’n for Retarded Citizens of Dall. v. Dall. Cty. Mental Health & Mental Retardation Ctr. Bd. of Trustees,
19 F.3d 241 (5th Cir. 1994) .......................................................................................................................17 Barber v. Bryant,
860 F.3d 345 (5th Cir. 2017) .....................................................................................................................17 Brooks v. Walker Cty. Hosp. Dist.,
688 F.2d 334 (5th Cir. 1982) .....................................................................................................................10 Bruni v. Hughs, 5:20-cv-35 (S.D. Tex. Mar. 5, 2020) ......................................................................................8 Burdick v. Takushi,
504 U.S. 428 (1992) ............................................................................................................................passim Cantu v. Moody,
933 F.3d 414 (5th Cir. 2019) .....................................................................................................................31 City of Austin v. Paxton,
943 F.3d 993 (5th Cir. 2019) ........................................................................................................13, 14, 16 Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ....................................................................................................................................18 Crawford v. Marion Cnty Election Bd.,
553 U.S. 181 (2008) ............................................................................................................................. 22, 24 Ctr. for Biological Diversity v. EPA,
937 F.3d 533 (5th Cir. 2019) .....................................................................................................................18 Deubert v. Gulf Fed. Sav. Bank,
820 F.2d 754 (5th Cir. 1987) .....................................................................................................................31 Dillard Dep’t Stores v. Owens,
951 S.W.3d 915 (Tex. App.—Corpus Christi 1997, no writ)..............................................................11 Doran v. Salem Inn, Inc.,
422 U.S. 922 (1975) ....................................................................................................................................36 Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity,
878 F.3d 371 (D.C. Cir. 2017)...................................................................................................................18 Ford Motor Co. v. Tex. Dep’t of Transp.,
264 F.3d 493 (5th Cir. 2001) .....................................................................................................................29 Gilby v. Hughs, 1:19-cv-1063 (W.D. Tex. Oct. 30, 2019)...............................................................................8 Groome Resources, Ltd. v. Parish of Jefferson,
234 F.3d 192 (5th Cir.2000) ......................................................................................................................29

State Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction

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Harris Cnty. Comm’r Court v. Moore, 420 U.S. 77 (1975) ......................................................................................................................................10
Harris v. Samuels, 440 F.2d 748 (5th Cir. 1971) .....................................................................................................................11
Harrison v. NAACP, 360 U.S. 167, 177 (1959)............................................................................................................................10
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ....................................................................................................................................18
Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994) .......................................................................................................................30
Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) ....................................................................................................................................17
In re Abbott, 954 F.3d 772 (5th Cir. 2020) .....................................................................................................................36
In re State Bd. for Educator Certification, 452 S.W.3d 802 (Tex. 2014) ........................................................................................................................7
Inclusive Cmtys. Project v. Abbott, 2018 WL 2415034 (N.D. Tex. May 29, 2018) ........................................................................................13
Jacobson v. Fla. Sec’y of State, -- F.3d --, 2020 WL 2049076 (11th Cir. Apr. 29, 2020) ..........................................................................................16
Justice v. Hosemann, 771 F.3d 285 (5th Cir. 2014) .....................................................................................................................11
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) ......................................................................................................................................27
La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010)...................................................................................................................18
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ....................................................................................................................................15
Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) .....................................................................................................................21
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................................................................ 16, 17, 18, 19
Maryland v. King, 567 U.S. 1301 (2012) ..................................................................................................................................35
Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020) .............................................................................................................. 21, 22
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407 (5th Cir. 2004) .....................................................................................................................13
McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969) ................................................................................................................ 21, 22, 23, 25
Miller v. Hughs, 1:19-cv-1071 (W.D. Tex. Nov. 1, 2019)....................................................................................................8
Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir. 1985) .....................................................................................................................12
Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009) .............................................................................................................. 10, 11
Morris v. Livingston, 739 F.3d 740 (5th Cir. 2014) .....................................................................................................................13

State Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction

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NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010)....................................................................................................................18
Nashville Student Org. Comm. v. Hargett, 155 F. Supp. 3d 749 (M.D. Tenn. 2015) .................................................................................................21
Nautilus Ins. Co. v. Int’l House of Pancakes, Inc., 622 F. Supp. 2d 470 (S.D. Tex. 2009)......................................................................................................29
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ..................................................................................................................................35
OCA-Greater Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017).............................................................................................................16
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985) .....................................................................................................................32
Palmer v. Jackson, 617 F.2d 424 (5th Cir. 1980) ................................................................................................................ 9, 10
Parson v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va.) ................................................................................................................32
Pennhurst State School and State Hospital v. Halderman, 465 U.S. 89 (1984) ......................................................................................................................................16
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013) .....................................................................................................................36
Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................................................................................................................................34
Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941) ......................................................................................................................................9
Rangra v. Brown, 566 F.3d 515 (5th Cir. 2009) .....................................................................................................................34
Ray v. Texas, 2008 WL 3457021 (E.D. Tex. 2008)........................................................................................................22
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020)................................................................................................................................34
Romero v. Coldwell, 455 F.2d 1163 (5th Cir. 1972)...................................................................................................................10
Russell v. Harris County, 2020 WL 1866835 (S.D. Tex. Apr. 14, 2020) .........................................................................................10
Salmon v. Lamb, 616 S.W.2d 296 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ.)................................................3
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017)................................................................................................................................37
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ......................................................................................................................................19
Stansberry v. Holmes, 613 F.2d 1285 (5th Cir. 1980)...................................................................................................................29
Stanton v. Stanton, 421 U.S. 7 (1975) ........................................................................................................................................37
Storer v. Brown, 415 U.S. 724 (1974) ......................................................................................................................................1
Stringer v. Hughs, 5:16-cv-257 (W.D. Tex. Dec. 20, 2019).....................................................................................................8

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Case 5:20-cv-00438-FB Document 39 Filed 05/12/20 Page 6 of 46
TDP v. Debeauvoir, No. D-1-GN-20-001610 (201st Dist. Ct., Travis Cty., Tex.) (dkt’d Apr. 17, 2020, 4:09 PM) ...................................................................................................................6
Tex. Democratic Party v. Abbott, 5:20-cv-438 (W.D. Tex. Apr. 7, 2020)........................................................8 Tex. Democratic Party v. DeBeauvior, D-1-GN-20-001610 (Tex. Dist. [Travis] Mar. 20, 2019) ..................8 Tex. Democratic Party v. Hughs, 5:20-cv-8 (W.D. Tex. Jan. 6, 2020) ..............................................................8 Tex. Educ. Agency v. Hous. Indep. Sch. Dist., No. 03-20-00025-CV,
2020 WL 1966314 (Tex. App.—Austin Apr. 24, 2020, no pet. h.) (per curiam) ................................7 Tex. Indigenous Council v. Simpkins,
No. 5:11-cv-315, 2014 WL 252024 (W.D. Tex. Jan. 22, 2014)............................................................17 Tex. Med. Providers Performing Abortion Servs. v. Lakey,
667 F.3d 570 (5th Cir. 2012) ............................................................................................................. 11, 12 Texas League of United Latin American Citizens, et al. v. Whitley, et al.,
Case No. 5:19-cv-00074-FB, Doc. 131 (W.D. Tex. Mar. 27, 2019)....................................................34 Thornhill v. Alabama,
310 U.S. 88 (1940) ......................................................................................................................................33 Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997) ............................................................................................................................. 20, 25 True the Vote v. Hosemann,
43 F. Supp. 3d 693 (S.D. Miss. 2014). .....................................................................................................25 United States v. 4,
385 F.2d 734 (5th Cir. 1967) .....................................................................................................................32 United States v. Texas,
445 F. Supp. 1245 (S.D. Tex. 1978).........................................................................................................21 United States v. Williams,
553 U.S. 285 (2008) ....................................................................................................................................33 Va. Office for Prot. & Advocacy v. Stewart,
563 U.S. 247 (2011) (citation omitted) ....................................................................................................13 Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) .....................................................................................................................34 Vielma v. Eureka Co.,
218 F.3d 458 (5th Cir. 2000) .....................................................................................................................11 Voting for Am. v. Steen,
732 F.3d 382 (5th Cir. 2013) .............................................................................................................. 11, 12 Walgren v. Bd. of Selectmen of Town of Amherst,
519 F.2d 1364 (1st Cir. 1975)...................................................................................................................21 Washington v. Davis,
426 U.S. 229 (1976) ....................................................................................................................................28 Willingham v. Cnty. of Albany,
No. 04-369, 2005 WL 1660114 (N.D.N.Y. July 12, 2005) ...................................................................32 Women’s Med. Ctr. of Nw. Hous. v. Bell,
248 F.3d 411(5th Cir. 2001) ......................................................................................................................12 Zapata v. Smith,
437 F.2d 1024 (5th Cir. 1971)...................................................................................................................16 Ziglar v. Abbasi, 137 S.Ct. 1843 (2017)...........................................................................................................32

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Statutes 52 U.S.C. § 10307(b) .......................................................................................................................................31 52 U.S.C. § 10308(d)........................................................................................................................................31 TEX. ELEC. CODE § 221.003 ..........................................................................................................................16 TEX. ELEC. CODE § 31.003.............................................................................................................................14 TEX. ELEC. CODE § 82.001-.004............................................................................................................passim TEX. ELEC. CODE § 83.005 .......................................................................................................................15 TEX. ELEC. CODE § 84.0041 ..........................................................................................................................33 TEX. GOV’T CODE § 418.001 ...........................................................................................................................3
Other Authorities Tex. Gov. Proclamation (Mar. 16, 2020 7:30 p.m.) ......................................................................................3 Tex. Gov. Proclamation (Mar. 18, 2020 10:00 a.m.).....................................................................................3 Tex. Gov. Proclamation (Mar. 20, 2020 6:35 p.m.) ......................................................................................3 Texas Civil Practice and Remedies Code sections 51.014(a)(4) and (8).....................................................6
Constitutional Provisions U.S. CONST. amend. XXVI, § 1 .....................................................................................................................22

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas; Ruth

§

Hughs, Texas Secretary of State, Dana

§

Debeauvoir, Travis County Clerk, and

§

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”
Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
On April 17, 2020, a Travis County trial court ordered that any Texas voter “without
established immunity [to COVID-19] meet[s] the plain language definition of disability” in the Texas
Election Code, and thus, is eligible to apply for a mail-in ballot in the upcoming 2020 elections. The
State of Texas immediately appealed that order, which conflicts with the Election Code’s plain text,
and—more urgently—threatens to destabilize the State’s carefully crafted framework governing the
conduct of elections. The resolution of the state court litigation will invariably alter these closely related
federal proceedings. For that reason, the Pullman abstention doctrine applies, and this Court should
decline to hear Plaintiffs’ claims at this juncture.

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Plaintiffs’ motion for preliminary injunction also exhibits fatal jurisdictional and substantive defects. None of the State Defendants—Greg Abbott, Governor of Texas, Ken Paxton, Texas Attorney General, or Ruth Hughs, Texas Secretary of State—enforce the provisions of the Election Code at issue. Sovereign immunity therefore bars Plaintiffs’ claims for injunctive relief against those officials on the basis of those provisions. For related reasons, Plaintiffs lack standing to sue State Defendants. And on the merits, Plaintiffs have not met their burden of showing that current or unknown future circumstances will prevent voters from safely exercising the franchise via in-person voting in July or November of this year. The known science of COVID-19 is constantly evolving, and with it, our understanding of how elected officials can continue to contain the spread of COVID-19 throughout the State—including, as relevant here, at polling places.
For these reasons and those below, State Defendants request that the Court abstain from ruling on Plaintiffs’ claims until the conclusion of the pending state court litigation. Alternatively, Plaintiffs’ motion for preliminary injunction should be denied because they have failed to make the showing required to obtain the extraordinary, and extraordinarily broad, injunctive relief they request.
BACKGROUND A. Texas Voters Will Be Able to Safely Cast an In-Person Ballot.
Our federal system places primary responsibility to protect the health and safety of Americans upon the States. And, in a different context, the Fifth Circuit recently cautioned that a federal court “should not impose[] its own judgment about how the COVID-19 pandemic should be handled . . . .” In re Abbott, 954 F.3d 772, 793 (5th Cir. 2020). Likewise, primary responsibility over the conduct of elections belongs to the States, and courts presume that States discharge these duties in good faith. Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). To accomplish both these ends, the state officials charged with guiding Texas through this crisis have been assiduously monitoring COVID-19 for months and will continue to do so as long as the COVID-19 disaster continues.

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On March 13, 2020, Governor Abbott exercised his statutory authority under the Texas
Disaster Act, TEX. GOV’T CODE § 418.001, et seq., and declared a state of disaster in all of Texas’s 254
counties. Proclamation (Mar. 13, 2020 11:20 a.m.); see Salmon v. Lamb, 616 S.W.2d 296, 298 (Tex. Civ.
App.—Houston [1st Dist.] 1981, no writ.) (discussing Governor’s emergency authority in election
context).
Since the disaster declaration, State officials have adopted multiple measures to protect, among
numerous other things, the uniformity and integrity of elections during the ongoing effort to slow the
spread of COVID-19. To date, the Governor has: • Ordered the special election for Senate District 14 to be held on July 14, 2020, stating that holding the election on an earlier date “would prevent, hinder, or delay necessary action in coping with the declared disaster by placing the public’s health at risk and threatening to worsen the ongoing public health crisis.” Tex. Gov. Proclamation (Mar. 16, 2020 7:30 p.m.); • Allowed political subdivisions to postpone elections scheduled for May 2, 2020 to November 3, 2020. Tex. Gov. Proclamation (Mar. 18, 2020 10:00 a.m.); • Postponed the May 26, 2020 primary runoff to July 14, 2020. Tex. Gov. Proclamation (Mar. 20, 2020 6:35 p.m.); and
In consultation with the relevant state agencies, the Governor has also issued appropriate suspensions
to allow the election cycle to proceed safely in light of COVID-19. Most recently, just yesterday, the Governor issued a proclamation expanding early voting for the July 14 election. See Exhibit A, Tex.
Gov. Proclamation (May 11, 2020 5:30 p.m.). The proclamation provides that “early voting by
personal appearance shall begin on Monday, June 29, 2020, and shall continue through the fourth day before election day, excluding any legal state or federal holidays.” Id. at 3. The purpose of the
expansion of early voting is to “to ensure that elections proceed efficiently and safely when Texans go
to the polls to cast a vote in person during early voting or on election day” by providing election
officials with sufficient time to “implement appropriate social distancing and safe hygiene practices.” Id. at 2.

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The Secretary of State has taken action, too, by issuing several advisories, including one providing guidance to local election officials on postponing elections scheduled for May 2, 2020.1 The Secretary urged local officials to exercise their authority to postpone elections scheduled for May 2, 2020 pursuant to the Governor’s March 18, 2020 proclamation, and as a result, most elections previously scheduled for this month were postponed until at least July. The Secretary of State’s office also has alerted election officials to the Governor’s May 11 proclamation and noted that counties have the “flexibility to offer voters extended early voting hours.” Exhibit B, Mass Email re: Proclamation regarding early voting for July 14, 2020 Elections (May 11, 2020). The advisory explained further that the State of Texas is receiving $29.4 million in federal funds to “prevent, prepare for, and respond to coronavirus, domestically or internationally, for the 2020 Federal election cycle.” Id. Those funds will be sub-granted to Texas counties. Id. And, in very short order, the Secretary of State will provide “detailed recommendations for protecting the health and safety of voters and election workers at the polls” and work closely with election officials “to ensure that our elections are conducted with the utmost safety and security.” Id. B. Texas Law Allows Voters to Vote by Mail Only in Limited Circumstances.
Most Texas voters vote in person, either during early voting or on election day. Voters may apply to vote by mail in only one of four instances—if they: (1) anticipate being absent from their county of residence; (2) have a disability that prevents them from appearing at the polling place; (3) are 65 or older; or (4) are confined in jail. TEX. ELEC. CODE § 82.001-.004. “Disability” for the purposes of the Election Code, is defined to allow a qualified voter to vote by mail if the “voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Id. § 82.002(a)

1 Texas Secretary of State, Election Advisory No. 2020-12 Actions for May 2, 2020 Uniform Election Date (March 18, 2020), available at https://www.sos.state.tx.us/elections/laws/advisory2020-12.shtml.

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(emphasis added). A disability need not be permanent to meet this definition so long as it exists on election day. For example, the Legislature expressly includes “expected or likely confinement for childbirth” in defining disability for purposes of ballot-by-mail eligibility. Id. § 82.002(b). This rule allowing sick or physically disabled voters to vote by mail has existed since 1935. Acts of 1935, 44th Leg., 2nd C.S., ch. 437, § 1, 1944 Tex. Gen. Laws 1700, 1700–01 (recodified 1985) (current version at Tex. Elec. Code §§ 82.001–.002). C. The Texas Democratic Party and Others Sued in Travis County Trial Court.
On March 23, 2020, the Texas Democratic Party (TDP) and two voters sued Travis County Clerk Dana Debeauvoir and the Secretary of State, seeking a declaration that the Election Code’s definition of “disability” applies to all voters who “believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Doc. 10-3 at 7 (quoting state court petition). Plaintiffs voluntarily dismissed their state court case against the Secretary. Id. at 8 n.7. Because when filed, the lawsuit implicated the constitutionality of State law and threatened to create chaos and uncertainty across Texas’s county-based election system (and indeed, has already done so), the State of Texas intervened by and through its Attorney General and participated in the preliminary injunction hearing.2 Id. at 7.
At a hearing on April 15, the State argued that the plaintiffs lacked standing to pursue their claims, which were based on a theory of speculative harm common to every Texas voter, and that the claims were unripe and sought an advisory opinion. Doc. 10-1 at 153–55. The State noted that scientific knowledge and insight into COVID-19 is growing and that State officials had demonstrated that their response was appropriately evolving as circumstances warranted changes to the State’s statutory election procedures. Id. at 155–56. Testimony from the plaintiffs’ experts supported these

2 After Texas’s intervention, an additional voter and several entities aligned with the TDP intervened on the plaintiffs’ side. Doc. 10-3 at 7–8. The state court plaintiff-intervenors are not parties to this case.

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propositions. Id. at 91 (testimony of epidemiologist that it is “very fair” to say that “we are still learning about COVID-19”); id. at 94 (recognizing that Texas’s public policy with respect to COVID-19 continues to develop). On the merits, the State argued that Section 82.002 of the Election Code does not permit voting by mail based on a fear of contracting a disease; instead, under the plain reading of the statutory text, a voter must have an illness or physical condition that in fact prevents them from voting in person without a likelihood of injury to that voter’s health. Id. at 156–57.
The trial court did not rule from the bench on April 15. The court indicated that it intended to grant the plaintiffs’ motion, but that the form of the order was still to be determined. Doc. 10-1 at 191, 193. Within thirty minutes of undersigned counsel’s being notified of entry of the court’s subsequent order on April 17, Texas filed its Notice of Appeal.3 As stated in that notice, Texas was entitled to appeal under Texas Civil Practice and Remedies Code sections 51.014(a)(4) and (8), which allow for immediate expedited interlocutory appeal from an order granting a temporary injunction or denying a plea to the jurisdiction. Pursuant to Texas Civil Practice and Remedies Code Section 51.014(b), all further proceedings in the State trial court are stayed pending resolution of the appeal. D. Texas’s Appeal Superseded the State Trial Court’s Temporary Injunction.
Under the Texas Rules of Appellate Procedure, the trial court’s temporary injunction was stayed upon the State’s appeal. In their motion for preliminary injunction in this Court, Plaintiffs mistakenly contend that the “only legitimate course of action for the Attorney General to void a Texas court order is to allow the trial court to issue its order, appeal the order for a stay, and then proceed expeditiously on appeal to make the best case for the order to be overturned.” Doc. 10 at 19. From that misunderstanding of Texas civil procedure, Plaintiffs accuse the Attorney General of spurning the Travis County trial court and dismantling the rule of law in Texas. Doc. 10 at 1–2. But it is

3 See Notice of Interlocutory Appeal, TDP v. Debeauvoir, No. D-1-GN-20-001610 (201st Dist. Ct., Travis Cty., Tex.) (dkt’d Apr. 17, 2020, 4:09 PM).

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Plaintiffs’ position that flouts the rule of law in the State. Indeed, the State’s right under Texas law to supersede and automatically suspend the effect of certain trial court judgments is well-established. As the Texas Supreme Court has long recognized
“The State has a valid statutory right to a supersedeas without filing a bond upon perfecting its appeal by giving proper notice. Unless a contrary intention is made known to the Court, the State’s notice of appeal operates as a supersedeas.” Ammex plainly recognized the State’s right to supersedeas upon filing a notice of appeal, and that power, also reflected today in T[EX.] R[.] A[PP.] P[.] 25.1(h), is undisputed. In re State Bd. for Educator Certification, 452 S.W.3d 802, 805 (Tex. 2014) (quoting Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482, 485 (Tex. 1964) (emphasis added)). If this was ambiguous before, or if it was unclear whether the State’s right to supersede applies to temporary injunctions, Texas’ Third Court of Appeals—where the state court appeal originated—reiterated this rule just last month. Tex. Educ. Agency v. Hous. Indep. Sch. Dist., No. 03-20-00025-CV, 2020 WL 1966314, at *2 (Tex. App.— Austin Apr. 24, 2020, no pet. h.) (per curiam). The court held that although an appellee may seek an order to preserve its rights pending the State’s appeal,4 the State has an automatic right to supersede upon filing a notice of appeal. Id. at *6 (stating that a “trial court has no discretion” to issue an order preventing that right). Thus, when the State filed its appeal, the trial court’s injunction was suspended, as were any obligations that it purported to impose upon the State. On May 6, 2020, the State court plaintiffs filed an emergency motion to undo that suspension and reinstate enforcement of the order. Plaintiffs’ motion is pending in Texas’s Fourteenth Court of Appeals, which received the case upon a transfer order from the Texas Supreme Court.5 The Fourteenth Court of Appeals has ordered expedited briefing on both the emergency motion and the parties’ merits briefing, and the State’s brief on the

4 The State has reserved the right to seek additional review in Texas Education Agency as Texas law limits an appellate court’s ability to order such relief to circumstances not presented in that (or Plaintiffs’ state court) case.
5 The appeal of the Travis County court order is now No. 14-20-00258-cv (Tex. App.—Houston [14th], dkt’d May 6, 2020). The Fourteenth Court of Appeals ordered a response to Plaintiffs’ motion by noon on May 11, 2020, which the State filed promptly.

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merits has been filed (a week before even the Fourteenth Court’s expedited deadline). Under the Fourteenth Court’s revised briefing schedule, the case will be submitted no later than June 12, 2020. E. The Texas Democratic Party Brought This Duplicative Lawsuit.
In the past six months, the TDP has led a coordinated campaign against half a dozen of Texas’s election regulations, some dating back decades and originally enacted by members of the TDP itself.6 This lawsuit is the latest salvo. Hedging against an unfavorable outcome in State court, Plaintiffs TDP, its Chair Gilberto Hinojosa, and three voters filed this action on April 7, 2020. See Doc. 1. Their amended complaint offers a variety of legal theories, but it seeks relief indistinguishable from what the TDP sought—and preliminarily obtained—in State district court. E.g., Doc. 10-5 (Plaintiffs’ proposed order purporting to allow any voter to vote by mail because of COVID-19). Plaintiffs did not, however, move urgently to serve the State Defendants or to litigate their claims in this Court. Instead, they waited until well after the State court ruled in their favor (and nearly two weeks after the Texas filed its notice of appeal) to pursue injunctive relief here.
Now, unhappy with the rules of procedure in the State court system they chose to utilize first, Plaintiffs claim crisis. They focus on the State’s articulation of the plain text of the Election Code— namely, that fear of contracting COVID-19 does not, without more, constitute a disability. Plaintiffs argue that this “interpretation” (1) violates the Twenty-Sixth Amendment as-applied, (2) discriminates on the basis of race in violation of the Equal Protection Clause as-applied, and (3) is void for vagueness. Doc. 10 at 15, 30, 22–25. Perhaps Plaintiffs’ most creative claim is that the Texas Attorney General acted improperly in responding to an inquiry from a legislator, Representative Stephanie

6 See Gilby v. Hughs, 1:19-cv-1063 (W.D. Tex. Oct. 30, 2019) (challenging HB 1888, which eliminated the use of certain temporary polling locations for early voting in Texas); Miller v. Hughs, 1:19-cv-1071 (W.D. Tex. Nov. 1, 2019) (challenging a ballot order statute enacted by Democratic officeholders); Stringer v. Hughs, 5:16-cv-257 (W.D. Tex. Dec. 20, 2019) (challenging voter registration laws); Tex. Democratic Party v. Hughs, 5:20-cv-8 (W.D. Tex. Jan. 6, 2020) (challenging statutory requirement that voter registration applications be in writing and signed by applicant); Bruni v. Hughs, 5:20-cv-35 (S.D. Tex. Mar. 5, 2020) (challenging repeal of straight ticket voting); Tex. Democratic Party v. Abbott, 5:20-cv-438 (W.D. Tex. Apr. 7, 2020); Tex. Democratic Party v. DeBeauvior, D-1-GN-20-001610 (Tex. Dist. [Travis] Mar. 20, 2019).

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Klick, Chair of the Texas House of Representatives Committee on Elections, who asked General Paxton for his interpretation of Election Code Section 82.002(a). Doc. 10-2 at 2. Plaintiffs seek to enjoin General Paxton from exercising his right to comment on these matters of deep public concern to the State of Texas.
ABSTENTION Though Plaintiffs’ current claims sound in federal law, they cannot be resolved without answering the question posed in state court: whether fear of contracting COVID-19 constitutes a “disability” under the Texas Election Code. That question is squarely presented in the state court litigation and will likely be taken up by Texas’s civil court of last resort in short order. In light of uncertainty about a predicate question of state law, this Court should abstain under Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). “The Pullman case establishes two prerequisites for Pullman abstention: (1) there must be an unsettled issue of state law; and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional questions raised.” Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980). Plaintiffs have done all they can to manufacture uncertainty about eligibility to vote by mail under Texas law. Broader eligibility to vote by mail would put Plaintiffs’ claims “in a different posture,” if not moot them entirely. Id. That is because if the plaintiffs in prevail in state court, all Texas voters could be eligible to vote by mail. In turn, Plaintiffs’ as-applied constitutional claims here, which are based on the alleged disparities between voters who can vote by mail and voters who cannot in the unique context of COVID-19, will be moot. Plaintiffs all but concede this point. See Doc. 10 at 33. At most, Plaintiffs would be left with facial constitutional challenges, which Plaintiffs expressly declined to bring in their motion for preliminary injunction. See id. at 14 n.8. But the fact that some claims might remain in the aftermath of the state courts’ interpretation of state law does not counsel against abstention: Even if the State court litigation “would not ‘avoid in whole or in part the necessity

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for federal constitutional adjudication,’ it might ‘at least materially change the nature of the problem.’” Jackson, 617 F.2d at 431 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)); see also Moore v. Hosemann, 591 F.3d 741, 745 (5th Cir. 2009) (noting abstention standard that the state court proceedings “substantially modify the federal constitutional question”); Brooks v. Walker Cty. Hosp. Dist., 688 F.2d 334, 338 (5th Cir. 1982) (abstaining because “clarification of” state law “may have a considerable impact on the posture and ultimate resolution of . . . federal issues”).
COVID-19 has generated new issues for courts. Just weeks ago, a federal court recognized the need for abstention in these extraordinary circumstances. Rather than decide federal constitutional questions, Judge Rosenthal abstained because “relevant state law is uncertain and will impact any argument in this court.” Russell v. Harris Cnty., 2020 WL 1866835, at *13 (S.D. Tex. Apr. 14, 2020). “[D]elicate considerations of federalism and separation of powers support abstention in this complex, rapidly evolving situation.” Id. The same reasoning applies here. Texas officials need space to enact policies that are responsive to and take full consideration of the evolving COVID-19 situation. Moreover, elected officials are better-equipped than courts to grasp the range of public health and social issues at play and craft appropriate policies to address them. And this is precisely their role in our representative democracy. For these reasons, this case presents an almost textbook illustration of the Pullman abstention doctrine. See Harris Cnty. Comm’r Court v. Moore, 420 U.S. 77, 84 (1975) (“Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law.”).
Recognizing that their own litigation strategy dictates that this Court abstain from hearing this case under Pullman, Plaintiffs preemptively argue that abstention is inappropriate because this is a voting-rights case. Doc. 10 at 33. On the contrary, binding precedent “confirm[s] that traditional abstention principles apply to civil rights cases.” Romero v. Coldwell, 455 F.2d 1163, 1167 (5th Cir. 1972) (abstaining in a one-man, one-vote case). Thus, it is no surprise the Fifth Circuit frequently abstains

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in cases challenging election laws. See, e.g., Justice v. Hosemann, 771 F.3d 285, 301 n.14 (5th Cir. 2014); Moore, 591 F.3d at 745–46; see also Harris v. Samuels, 440 F.2d 748, 752–53 (5th Cir. 1971).
And although Plaintiffs assert that state court proceedings are not moving quickly enough, Doc. 10 at 33, Plaintiffs are the masters of their litigation decisions. At the temporary injunction hearing before the state court, counsel for Plaintiffs expressly disclaimed any argument that Section 82.002(a) is unconstitutional on any of the theories they pursue here. Doc. 10-1 at 38. It is beyond peradventure that state courts can resolve these types of constitutional questions, see, e.g., Dillard Dep’t Stores v. Owens, 951 S.W.3d 915, 919 (Tex. App.—Corpus Christi 1997, no writ), and that federal courts can interpret state law, e.g., Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000). Plaintiffs chose to split their claims; that litigation decision does not support ignoring longstanding abstention doctrines that federal courts have applied for decades. Instead, Plaintiffs’ claims should be dismissed without prejudice until the state court proceedings conclude. See Moore, 420 U.S. at 88 (explaining that because the Texas Supreme Court has ruled that “it cannot grant declaratory relief under state law if a federal court retains jurisdiction over the federal claim,” “we direct the District Court to dismiss the complaint”).
PRELIMINARY INJUNCTION STANDARD Should the Court determine that Pullman abstention does not apply and that a ruling should issue, the Court should deny Plaintiffs’ motion. To obtain a preliminary injunction, the applicants must show “(1) a substantial likelihood that they will prevail on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) their substantial injury outweighs the threatened harm to the party to be enjoined; and (4) granting the preliminary injunction will not disserve the public interest.” Voting for Am. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013) (quoting Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)). The Fifth Circuit “has repeatedly cautioned that a preliminary injunction is an extraordinary

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remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.” Steen, 732 F.3d at 386 (quoting Lakey, 667 F.3d at 574 (quotation marks omitted)) (emphasis added). If the movant fails to establish any one of the four elements, relief will not be granted. Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). Even if a movant satisfies all four factors, the decision whether to grant a preliminary injunction lies within the district court’s discretion and is to be treated as an exception rather than the rule. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
ARGUMENT A. Plaintiffs Cannot Overcome Sovereign Immunity and Lack Standing.
Plaintiffs are unlikely to prevail on their claims against State Defendants under the Fourteenth and Twenty-Sixth Amendments because those defendants do not enforce Texas Election Code Section 82.002 or 82.003, and are immune from suit. For related reasons, Plaintiffs lack standing to bring these claims against the State Defendants.
i. Sovereign immunity As an initial matter, it is unclear what actions Plaintiffs seek to enjoin, and against whom they request that injunction to apply. As best the State Defendants can discern, Plaintiffs seek to enjoin enforcement of Election Code chapter 82 in a manner that would prohibit universal mail-in voting. Their proposed order asks the Court to order that “Defendants may not deny a mail in ballot to any Texas voter that applies for a mail-in ballot because of the risk of transmission of COVID-19.” Doc. 10-5. That would necessarily mean enjoining State Defendants from giving effect to the plain meaning of Election Code Sections 82.002 and 82.003. But because none of the State Defendants enforce those sections, this claim is barred by immunity. “[T]he principle of state-sovereign immunity generally precludes actions against state officers in their official capacities, subject to an established exception: the Ex parte Young doctrine.” McCarthy

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ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (citation omitted). Thus, Plaintiffs’ claims fail unless they fit that exception. Ex parte Young “rests on the premise—less delicately called a ‘fiction’—that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to that precise situation . . . .” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (citation omitted).
As a consequence, Ex parte Young applies only when the defendant enforces the challenged statute. The “the general duty to see that the laws of the state are implemented” held by a statewide official (such as the Governor, Attorney General, or Secretary of State) is insufficient. See Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quotation marks omitted). Instead, the named defendant must have “particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Id. (emphasis added; quotation marks omitted). As the Fifth Circuit has recently emphasized, even when a government official “has the authority to enforce” a challenged statute, a plaintiff still must show the official “is likely to do [so] here.” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). That is, without evidence that the named defendant is likely to enforce the law against these plaintiffs, the government official “lacks the requisite connection to the enforcement of ” the challenged law. Id. (quotations omitted).
None of the State Defendants in this case has the “requisite connection” to bring him or her within Ex parte Young’s ambit. First, the Governor does not enforce the Texas Election Code, and, more specifically, does not administer Texas elections. The Governor’s authority as the State’s chief executive does not make him a proper defendant. See, e.g., Morris, 739 F.3d at 746 (dismissal of Governor Perry from case because the statute at issue did not “specially task Governor Perry with its enforcement, or suggest that he will play any role at all in its enforcement.”); Inclusive Cmtys. Project v. Abbott, 2018 WL 2415034, at *6 (N.D. Tex. May 29, 2018) (holding that group lacked standing to sue

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Governor Abbott where challenged laws “do not provide Governor Abbott with the authority or ‘definite responsibilities’ to enforce the Statute”).
Second, General Paxton also does not have authority to administer Texas elections. Cf. City of Austin, 943 F.3d at 1002 (“[T]his circuit’s caselaw requires some scintilla of ‘enforcement’ by the relevant state official with respect to the challenged law.”). General Paxton has concurrent jurisdiction with local prosecutors to prosecute election fraud. But Plaintiffs have made no allegations that General Paxton has either brought criminal enforcement proceedings for potential violations of the Election Code relating to COVID-19, or threatened to bring such criminal proceedings against them. At most, they point to a letter in which General Paxton noted (in response to a question that he received) that “to the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041.” Doc. 10-2 at 6 (emphasis added). But General Paxton cautioned that “whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.” Id. Those caveats are critical; they reflect that General Paxton is not threatening criminal enforcement against any particular actor. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014) (noting to establish standing in a pre-enforcement context, the threat of enforcement against a particular plaintiff must not be “chimerical”).
Third, although the Election Code charges the Secretary of State with “obtain[ing] and maintain[ing] uniformity in the application, operation, and interpretation of this code,” TEX. ELEC. CODE § 31.003, it does not provide her the power to actually enforce the Election Code or to coerce local officials. Instead, it authorizes the Secretary to “assist and advise all election authorities with regard to the application, operation, and interpretation of this code.” Id. § 31.004(a). Thus, the Secretary “maintain[s] an informational service for answering inquiries of election authorities relating to the administration of the election laws or the performance of their duties.” Id. § 31.004(b). The

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Secretary’s other, limited enforcement powers would not allow her to coerce a local official in a case like this. E.g., id. § 31.005. Because she neither enforces the mail-in-ballot rules herself nor controls local officials’ enforcement, the Secretary lacks the requisite connection to the challenged law for purposes of Ex parte Young.
Instead, early-voting clerks are responsible for conducting early voting and must “review each application for a ballot to be voted by mail.” Id. § 86.001 (a). For most state- and county-wide elections, the county clerk or elections administrator is the early-voting clerk, while “[t]he city secretary is the early voting clerk for an election ordered by an authority of a city.” Id. § 83.005. Each early-voting clerk is responsible for determining whether an application to vote by mail complies with all requirements, providing notice and cure instructions to a voter who submits a noncompliant application, and “provid[ing] an official ballot envelope and carrier envelope with each ballot provided to a voter” who properly completes an application. Id. §§ 86.001(a), .008, .009, .002(a). Thus, the counties and political subdivisions, not State officials, are responsible for administering early voting in Texas.
But even if the State Defendants could control local officials’ enforcement of the early voting laws, a federal court could not order them to exercise such power. The Ex parte Young exception is limited to prohibitory injunctions “prevent[ing] [a state official] from doing that which he has no legal right to do.” 209 U.S. at 159. It does not authorize mandatory injunctions directing “affirmative action.” Id.; see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949) (“Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.”). Thus, sovereign immunity bars “cases where the [defendant] sued could satisfy the court decree only by acting in an official capacity.”

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Zapata v. Smith, 437 F.2d 1024, 1026 (5th Cir. 1971) (Frankfurter, J., dissenting); see also Jacobson v. Fla. Sec’y of State, -- F.3d --, 2020 WL 2049076, at *13 (11th Cir. Apr. 29, 2020) (explaining that “an injunction ordering the Secretary to promulgate a rule . . . . would have raised serious federalism concerns” and that “it is doubtful that a federal court would have authority to order it”). Because that is true here, Plaintiffs cannot overcome State Defendants’ immunity.7
ii. Standing Plaintiffs also cannot establish standing to sue State Defendants. Acceptance or rejection of an application to vote by mail falls to local, rather than State, officials. See supra, Part A(i). Thus, Plaintiffs’ asserted injuries are not “fairly traceable to the challenged action of the defendant”; rather, they are “the result of the independent action of some third party not before the court.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quotation and alterations omitted). And the impact of the statutory scheme on a plaintiff is irrelevant for standing purposes; what matters is whether the named defendants enforce that scheme. See Okpalobi, 244 F.3d at 426 (majority op.) (dismissing claims for lack of standing and explaining that courts should not “confuse[] the statute’s immediate coercive effect on the plaintiffs with any coercive effect that might be applied by the defendants”); Paxton, 943 F.3d at 1002 (finding that it was “unlikely that the [plaintiff] had standing” to sue a state official who did not have the power to enforce the challenged statute). Thus, Plaintiffs’ purported injuries are not redressable, and Plaintiffs’ claims fail for that reason, too.8 Moreover, Plaintiffs have failed to establish any cognizable injury and are essentially seeking an impermissible advisory opinion. “Because a preliminary injunction may only be awarded upon a

7 To the extent that the Plaintiffs’ claims would require this Court to order state officials to comply with state (as opposed or in addition to) federal law, it is also barred by the principles announced in Pennhurst State School and State Hospital v. Halderman, 465 U.S. 89 (1984).
8 OCA-Greater Houston v. Texas does not help Plaintiffs because it found standing only for “facial” claims and only when there is “no private right of action.” 867 F.3d 604, 613 (5th Cir. 2017). Here, Plaintiffs bring as-applied claims, and there is a relevant private right of action. Losing candidates can bring election contests to challenge the application of the statute. See TEX. ELEC. CODE § 221.003.

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clear showing that the plaintiff is entitled to such relief, the plaintiffs must make a clear showing that they have standing to maintain the preliminary injunction.” Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (internal quotation marks omitted). Of course, this requires “evidence in the record of an injuryin-fact.” Id. at 355. Here, Plaintiffs have not submitted any evidence of standing, not even declarations from the plaintiffs themselves. That alone is reason enough to deny the motion for a preliminary injunction.
Allegations in Plaintiffs’ complaint cannot suffice at the preliminary-injunction stage. Even if Plaintiffs’ allegations sufficed at the pleading stage, they are not enough at this stage. See Lujan, 504 U.S. at 561 (“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”). But in any event, even if Plaintiffs had submitted evidence proving their allegations to be true, that still would not be enough. Plaintiffs have not plausibly alleged a cognizable injury in fact.
This includes the TDP and its Chair, Gilberto Hinojosa. TDP lacks associational standing because it has not identified any injured members. First, TDP has not established that it even has members within the meaning of the associational standing test. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 344 (1977) (requiring “indicia of membership”). TDP has not alleged that its purported members “elect leadership, serve as the organization’s leadership, and finance the organization’s activities, including the case’s litigation costs.” Tex. Indigenous Council v. Simpkins, 2014 WL 252024, at *3 (W.D. Tex. Jan. 22, 2014). Nor they do not allege that those individuals “participate in and guide the organization’s efforts.” Ass’n for Retarded Citizens of Dall. v. Dall. Cty. Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994). The allegation that some of the individual Plaintiffs voted in a Democratic primary election is insufficient. See Doc. 9 ¶¶ 71–73. The individual Plaintiffs do not even allege that they consider themselves members of TDP.

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Second, even if the individual Plaintiffs were members of TDP, they lack standing for the reasons explained above and below. Without injured members, TDP cannot have associational standing. See Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 536 (5th Cir. 2019).
TDP also does not have organizational standing. An organization lacks organizational standing unless it satisfies the same Article III requirements applicable to individuals: injury in fact, causation, and redressability. E.g., NAACP v. City of Kyle, 626 F.3d 233, 237 (5th Cir. 2010) (citing Lujan, 504 U.S. at 560–61). In an appropriate case, an organization can establish an injury in fact by showing that the challenged law conflicts with the organization’s mission and “perceptibly impair[s]” its activities. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
If an organization avoids the impairment of its activities by spending additional resources to combat the effects of the challenged law, then the “drain on the organization’s resources” may constitute an injury in fact. Id.; see City of Kyle, 626 F.3d at 238. But a diversion of resources is not a cognizable injury in fact unless the plaintiff “would have suffered some other injury if it had not diverted resources to counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010);see Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 379 (D.C. Cir. 2017) (“[A]ny resources [the organizational plaintiff] used to counteract the lack of a privacy impact assessment—an assessment in which it has no cognizable interest—were a self-inflicted budgetary choice that cannot qualify as an injury in fact.” (quotation omitted)). That is because a plaintiff “cannot manufacture standing by choosing to make expenditures based on” an alleged harm that does not itself qualify as an injury in fact. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013).
TDP’s claims fail on both theories. It has not established that Sections 82.002–.003 cause them any cognizable injury-in-fact. Plaintiffs claim they are “injured by the uncertainty of the laws associated with voting by mail[.]” Doc. 10 at 6–7. By TDP’s own admission, the injury is uncertain and therefore

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speculative, and the Party and its leaders therefore lack standing. See Lujan, 504 U.S. at 561 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)) (to have standing, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision’).
Plaintiff Hinojosa also lacks standing. Insofar as he sues in his official capacity as the chairman of TDP, he lacks standing for the same reason TDP does. Insofar as he sues in his individual capacity, he lacks standing for the same reasons the other individual Plaintiffs do. None of the individual Plaintiffs has alleged that he or she is currently ineligible to vote by mail. See Doc. 9 ¶¶ 70–73. Perhaps they would be eligible to vote by mail, for example, because they expect to be traveling or because they have a qualifying disability. Their complaint does not say and therefore fails to establish standing. Instead, the complaint demonstrates that Plaintiffs seek an advisory opinion based on contingent or speculative circumstances. See Halder v. Standard Oil Co., 642 F.2d 107, 110 (5th Cir. 1981) (noting that a court may not issue “an opinion advising what the law would be upon a hypothetical state of facts.”).
There are other standing problems. No Plaintiff has standing to pursue a race discrimination claim. The three named Plaintiffs have not even pleaded membership in a protected racial group, let alone how they are being discriminated against on account thereof. See Doc. 10 at 7. Accordingly, they lack standing to sue for racial discrimination that they do not even plausibly allege or describe. And, as explained above, TDP claims only that it “is injured by the uncertainty of the laws associated with voting by mail.” Doc. 10 at 6. TDP does not claim an injury for violations of the Constitution on the basis of race. Because no Plaintiff has standing to pursue a claim for unlawful racial discrimination, Plaintiffs cannot obtain a preliminary injunction on that claim (or any other for which they have not established standing). B. Plaintiffs Are Unlikely to Prevail on the Merits of Their Twenty-Sixth Amendment or
Equal Protection Claims. On the merits, Plaintiffs claim that State Defendants have violated the Fourteenth and Twenty-Sixth Amendments by failing to implement a mail ballot system that applies to all registered

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voters universally, especially those who fear exposure to COVID-19. More specifically, Plaintiffs claim that (1) the definition of a “disability” under Section 82.002 of the Election Code creates an unconstitutional burden on the fundamental right to vote; (2) Section 82.003, which allows voters 65 years of age or older to apply to vote by mail, creates impermissible voter classifications based on age;9 and (3) those classifications are also racially discriminatory. Doc. 10, Part II(A), (E). But Plaintiffs cannot make out any constitutional violation. And the relief they seek is an unjustified wholesale abrogation of the Texas Legislature’s complex statutory framework regulating the State’s elections. This statutory framework survives constitutional scrutiny, even in (and perhaps, especially in) these challenging times.
i. The legal standard In recent decades, the Supreme Court has evaluated First and Fourteenth Amendment challenges to state election laws under the “Anderson-Burdick” framework. See Burdick, 504 U.S. 428; Anderson v. Celebrezze, 420 U.S. 780 (1983). Under this standard, courts “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). State rules that impose a severe burden on constitutional rights must be “narrowly drawn to advance a state interest of compelling importance.” Id. “Lesser burdens, however, trigger less exacting review, and a State’s ‘important regulatory interests’ will usually be enough to justify ‘reasonable nondiscriminatory restrictions.’” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citations omitted).

9 Texas is not the only state that expands voting by mail for older voters. Seven others—Indiana, Kentucky, Louisiana, Mississippi, South Carolina, Tennessee, and West Virginia—do too. See Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, National Conference of State Legislatures, available at https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.

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Plaintiffs do not dispute that Anderson-Burdick applies to their Equal Protection claims, Doc. 10 at 27–28, but they contend that strict scrutiny applies to their Twenty-Sixth Amendment claim. The only authority they identify, United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), does not support that proposition for three reasons. First, in that case, the district court described itself as applying “close constitutional scrutiny” to a restriction on the right to vote. Id. at 1246. But the case pre-dates the modern Anderson-Burdick standard. Second, it dealt with a burden on the right to register to vote, id. at 1248, which—as noted infra—is subject to more robust protection than an asserted right to vote in a given way, such as a mail-in ballot. See, e.g., McDonald, 394 U.S. at 807–09; Mays v. LaRose, 951 F.3d 775, 783, n.4 (6th Cir. 2020); Burdick, 504 U.S. at 433. Third, United States v. Texas dealt with the singling-out of the student community for special treatment and the imposition of nearly insurmountable voter-registration requirements. 445 F. Supp. at 1246. By contrast, here young people and elderly people alike have the same avenues for in-person voting available to them.
In the alternative, Plaintiffs contend that the Court should evaluate their Twenty-Sixth Amendment claim through the Arlington Heights factors. Doc. 10 at 28. But thus far, neither the Fifth Circuit nor the Supreme Court has established a standard for Twenty-Sixth Amendment claims, and neither of the Courts of Appeal to have considered such claims have applied the Arlington Heights factors. See Lee v. Va. State Bd. of Elections, 843 F.3d 592, 607 (4th Cir. 2016); Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364, 1366–67 (1st Cir. 1975). To the contrary, courts, including the First Circuit, have either applied or suggested they would apply the Anderson-Burdick balancing approach. Cf. Walgren, 519 F.3d at 1367 (suggesting a “rigorous standard of review” might apply to a TwentySixth Amendment claim “if a significant burden were . . . intentionally imposed”); Nashville Student Org. Comm. v. Hargett, 155 F. Supp. 3d 749, 754 (M.D. Tenn. 2015) (“the court finds that, similarly, the Tennessee Voter ID Law is not an abridgment of the right to vote, let alone a denial of it, for purposes

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of a Twenty-Sixth Amendment claim.”) (citing Crawford v. Marion Cnty Election Bd., 553 U.S. 181 (2008) (applying Anderson-Burdick)).
The Court should apply rational basis review because this case implicates the ability to vote by mail, not the fundamental right to vote. But even if the stricter Anderson-Burdick standard applies, Plaintiffs’ constitutional claims fail.
ii. Plaintiffs’ Twenty-Sixth Amendment claim fails. a. Under rational-basis review, Plaintiffs cannot prevail.
The Twenty-Sixth Amendment provides that the “right of citizens of the United States, who are eighteen 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. Texas Election Code section 82.003 does not “deny or abridge” anyone’s right to vote. It is therefore subject to rational-basis review, which it easily satisfies.
No one, least of all the State, disputes that “voting is of the most fundamental significance under our constitutional structure.” Burdick, 504 U.S. at 433 (citations and quotation marks omitted). “It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.” Id. Consequently, “State action making it easier for some electors to vote—such as providing them an extended deadline to register for absentee ballots— doesn’t make it harder to vote for electors that don’t get the same benefit.” Mays v. LaRose, 951 F.3d at 783 (6th Cir. 2020).
It is perhaps unsurprising, then, that “there is no constitutional right to an absentee ballot.” Id. at 792 (citing McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807-09 (1969)). See also, e.g., Ray v. Texas, 2008 WL 3457021 (E.D. Tex. 2008) (“It is well-settled that voting by absentee ballot is not a fundamental right requiring strict scrutiny analysis.”) (citing McDonald, 394 U.S. 802); Crawford v. Marion Cty. Election Bd., 553 U.S. at 209 (Scalia, J., concurring in the judgment) (“That the State

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accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence—not a constitutional imperative that falls short of what is required.”).
In McDonald, the Supreme Court recognized the clear distinction between the right to register to vote and cast a ballot, and the ability to utilize a state’s absentee-ballot machinery. 394 U.S. at 807 The Court explained that “absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise[.]” Id. That the jailed plaintiffs in McDonald were unable to vote by mail did not implicate the right to vote because it did not “preclude[ ] [the plaintiffs] from voting” via other methods. Id. at 808; id. at 807 (“It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. . . .”). Thus, laws allowing certain groups to vote by mail cannot fairly be said to deny the franchise to those groups not included, and any burden on the fundamental right to vote is minimal and therefore subject to rational basis review. See id; see also, e.g., Burdick, 504 U.S. at 433.
Under rational basis review, so long as the distinctions made in the challenged law bear a rational relationship to a legitimate governmental end, the law must be upheld. Id. at 809. The Texas Election Code’s distinction between those aged 65 and over and those under 65 for purposes of voting by mail is rational. Even outside the context of COVID-19, individuals aged 65 and over (as a group) face unique challenges in attending the polls. For example, many live in nursing homes and have limited mobility.10 The State’s decision to allow older Texans to vote by mail without extending that privilege to everyone is a rational way to facilitate exercise of the franchise for Texans who are more likely to face everyday barriers to movement, outings, and activity than younger people. The decision has proven particularly prescient here, given that individuals aged 65 and over face a greater risk of developing complications from COVID-19 than those under 65. Exhibit C, Declaration of Jeffrey

10 See Long Term Care, Texas Health and Human Services, available at https://hhs.texas.gov/services/aging/long-term-care (estimating that as many as 70 percent of people turning 65 can expect to use some form of long-term care during their lives).

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Klausner, M.D., ¶¶ 24–28. For these reasons, Section 82.003 survives rational basis review. b. Plaintiffs’ Twenty-Sixth Amendment claim also fails under AndersonBurdick.
Even if the stricter Anderson-Burdick standard applies, section 82.003 meets that standard. “To deem ordinary and widespread burdens severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of the States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Crawford, 553 U.S. at 197. “The Constitution does not require that result, for it is beyond question that the States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Id. (quotations omitted). The Texas Legislature has not provided for universal mail-in balloting, and the Constitution allows the Legislature that choice.
As the Supreme Court has explained:
There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear. Id. at 196. Given Texas’s interest in ensuring uniform, orderly elections that are carried out consistent with State law, commanding election officials across 254 counties to hastily cobble together a universal vote-by-mail system in time for this year’s elections without the care and planning required risks widespread chaos. The Supreme Court has also stated that “[w]hile [the interest in the integrity and legitimacy of representative government] is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.” Id. at 197. Plaintiffs apparently believe it is irrational to allow mail-in voting for a limited class of people while also wanting to prevent election fraud. In fact, Texas’s system limits the class of eligible mail-in

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voters at a level that allows the State to monitor the process for fraudulent activity. If Texas suddenly and drastically expands the ability to vote by mail to every single adult citizen in the State, its ability to detect and prosecute election fraud will be greatly diminished by the deluge of mail ballots. Despite Plaintiffs’ claims to the contrary, the approach that has been carefully and extensively considered in the Texas Legislature is a perfectly logical balancing of these interests.
As explained above, Section 82.003 in no way hampers Plaintiffs’ fundamental right to vote. Rather, it provides another avenue to cast a ballot for members of a community more likely to face special challenges voting in person. Those challenges existed before the pandemic and are exacerbated by it now. Ex. C ¶ 25. Under Anderson-Burdick, therefore, Section 83.003 places no burden upon Plaintiffs’ ability to cast a vote.
Sections 82.002(a) and 82.003 are important to the State for many other reasons, among which is that “the State . . . has a significant interest in enforcing its enacted laws.” True the Vote v. Hosemann, 43 F. Supp. 3d 693, 742 (S.D. Miss. 2014). Moreover, States must regulate elections uniformly “if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process[].”’ Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. at 730). Because Plaintiffs face no burden under section 82.003, the State’s important interests in maintaining the rule of law and ensuring the orderly administration of elections outweighs Plaintiffs’ “claimed right” to vote by mail. See Timmons, 520 U.S. at 358; McDonald, 394 U.S. at 807–09.
That leaves Plaintiffs’ final argument: that under-65 voters might contract COVID-19 while voting in person in July or November, and that those voters must be given the opportunity to vote by mail, or else face an unconstitutional burden on their exercise of the franchise. See Doc. 10 at 19–20. Although COVID-19 certainly presents new issues for officials to consider in managing and conducting elections, the record does not support Plaintiffs’ assertion that voting in person in the age of COVID-19 is an unconstitutional burden on the right to vote.

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To begin, Plaintiffs lack specific evidence that they will not be able to safely vote in person in
the July or November elections. The science of COVID-19 treatment and prevention is rapidly
developing, and policy decisions are evolving with it to ensure that voters can safely vote at the polls.
Texas counties are taking significant steps to ensure that voting in-person is safe for their residents.
For example, Collin County is instituting the following procedures at its polling places in July:
 Thoroughly training election workers on best practices for setting up polling locations for social distancing, including determining maximum capacity inside the voting areas;
 Providing a table-mounted Plexiglas protective shield at each voter checkin station. Poll workers will be stationed behind the protective shield as they are processing the voters;
 Providing protective masks for all election workers. A new mask will be provided for each day of Early Voting and on Election Day;
 Providing sanitizing wipes and hand sanitizer to each location in sufficient quantities as to accommodate voter turnout and equipment sanitation needs. Election workers will be trained on proper procedures for sanitizing the items touched by voters;
 Providing social distancing floor decals to polling places to ensure safety recommendations are practiced inside and outside the location;
 Offering cotton swabs to voters to use as disposable styli for marking their ballot selections on the touch screen ballot marking device;
 Placing additional election workers in polling places to assist with changes relating to implementation of the safety measures;
 Preparing for increased curbside voting traffic at polling places; and  Conducting a thorough post-election analysis of the safety measures used
in the July 14, 2020 Primary Runoff Election including seeking input from voters and election workers, and making any necessary adjustments to the safety measures in preparations for the November 3, 2020 General Election. Exhibit D, Declaration of Bruce Sherbet ¶ 4. Other counties intend to introduce similar protective
measures. Id. ¶ 6. These steps will significantly reduce the risk of transmission of COVID-19 at polling
sites and make it safe for voters to be present at polling sites. Ex. C ¶ 42.
There are also several salient features of the COVID-19 pandemic in Texas that bear on
Plaintiffs’ claims. Fortunately, Texas has been less afflicted by COVID-19 than some other States, id.

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¶ 29, and to the extent that there is an increase in COVID-19 infections in the future, the steps that Texas is taking to control the spread of infections, utilizing methods such as contact methods and tracing, will help limit community spread across the State. See DSHS, Contact Tracing, available at https://www.dshs.state.tx.us/coronavirus/tracing.aspx; see also Ex. C ¶ 36. Indeed, some Texas counties do not have a single reported case of COVID-19. Id. ¶ 31. And the voters most at risk of becoming seriously ill from COVID-19—those who are over 65 or who have underlying health conditions—are already eligible to vote by mail. See TEX. ELEC. CODE §§ 82.002–.03. Healthy young adults are unlikely to become ill from COVID-19. Ex. C ¶ 28. Viewed together, this evidence shows that Plaintiffs will not be unconstitutionally burdened if the challenged provisions of the Texas Election Code remain in effect for the July and November elections. Indeed, Dr. Jeffrey Klausner, a medical doctor and expert in epidemiology, opines that the upcoming elections can safely be conducted in the State of Texas. Id. ¶ 44. Experiences in at least one other state, Wisconsin, demonstrate that elections can be held in-person without an increased risk of transmission of COVID19. Id. ¶ 43. Balanced against the State’s interests in ensuring smooth and efficient elections, preventing voter confusion and disarray, ensuring the security of election results, and maintaining the rule of law, it becomes apparent that Plaintiffs are not entitled to preliminary injunctive relief.
For these reasons, Plaintiffs have not shown a substantial likelihood that they will prevail on their as-applied Twenty-Sixth Amendment claim.
iii. Plaintiffs’ Equal Protection claims also fail. a. Age
For similar reasons, plaintiffs’ age-based discrimination claims fail. The Supreme Court has squarely held that “States may discriminate on the basis of age without offending the Fourteenth Amendment” so long as “the age classification in question is rationally related to a legitimate state interest.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83–84 (2000) (quotation and brackets omitted). This

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standard “does not require States to match age distinctions and the legitimate interests they serve with razorlike precision.” Id. The Court may not overturn such “action unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the government's actions were irrational.” Id. For the reasons set forth at length above, Section 82.003 satisfies rational basis review, and also survives even stricter Anderson-Burdick scrutiny.
b. Race Plaintiffs’ preliminary injunction motion offers no legal authorities in support of their claim of racial discrimination in violation of the Equal Protection Clause. Doc. 10 at 30. Instead, Plaintiffs attempt to bootstrap this claim onto their age-discrimination claim, alleging that “[m]ost mail ballots are provided to Texas’s seniors who are 65 years of age or older,” and that “Texas’ population of voters older than 65 is overwhelmingly Anglo.” Id. But they fail to show that any impact on a younger population is also an impact on its minority population—that is, that minority individuals under 65 are disfavored compared to similarly situated Anglos under 65. And even if they had made such a showing, a disparate impact alone is not enough to state an equal protection violation based upon race. Washington v. Davis, 426 U.S. 229, 242 (1976) (“[W]e have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.”). Plaintiffs offer no evidence of discrimination, let alone intentional discrimination, on the basis of race. They are not entitled to injunctive relief on their bare-bones assertion of racial discrimination. C. The Election Code’s Definition of “Disability” is Not Unconstitutionally Vague. The above sections address the bulk of Plaintiffs’ motion for preliminary injunction. But Plaintiffs raise a smattering of other arguments. All of them lack merit. State Defendants turn to those claims next.

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First, Plaintiffs’ “void-for-vagueness” claim with respect to Section 82.002(a) is not, fairly construed, a void-for-vagueness claim at all. The Fifth Circuit has explained that the “void-forvagueness doctrine has been primarily employed to strike down criminal laws,” and that in the civil context, “the statute must be ‘so vague and indefinite as really to be no rule at all.” Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192, 217 (5th Cir.2000). But Plaintiffs do not claim that Section 82.002(a)’s definition of “disability” is “vague and indefinite”; indeed, they claim that a plain reading of the statute clearly supports their construction of the statute. Doc. 10 at 22.
Plaintiffs actually object to the Attorney General’s letter responding to an inquiry about the statute’s construction. But, as the Fifth Circuit has explained, a “statute is not unconstitutionally vague merely because a company or an individual can raise uncertainty about its application to the facts of their case.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 509 (5th Cir. 2001); see also Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980) (“A provision need not . . . be cast in terms that are mathematically precise; it need only give fair warning of the conduct proscribed, in light of common understanding and practices.”). That is because the void-for-vagueness doctrine “does not ordain the unconstitutionality of a statute that two lawyers may read differently, nor does it mean that persons subject to the law may bank against . . . inconsistent decisions.” Nautilus Ins. Co. v. Int’l House of Pancakes, Inc., 622 F. Supp. 2d 470, 481 (S.D. Tex. 2009) (citation omitted). “[N]either absolute uniformity of interpretation, nor total absence of ambiguity is semantically or practically achievable, or, it necessarily follows [,] constitutionally required.” Id. (citation omitted).
Moreover, Plaintiffs’ “as-applied” void-for-vagueness claim should not—indeed, cannot—be resolved prior to the resolution of the State court proceedings. If the Texas Supreme Court ultimately agrees with the State, Plaintiffs will not have a void-for-vagueness claim because the State’s highest court will have definitively interpreted the plain language of the Election Code. And if the Texas

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Supreme Court agrees with Plaintiffs, that decision will govern, too. Either way, the Pullman abstention doctrine precludes the Court from unnecessarily interpreting Section 82.002(a) at this juncture. D. Attorney General Paxton Did Not Intimidate Plaintiffs or Any Other Voters.
Resolution of the state litigation is also necessary to determine Plaintiffs’ voter intimidation claim(s). Plaintiffs’ motion for preliminary injunction drips with disdain that the Attorney General responded to Chair Klick’s request for guidance on this important issue of state law, making an outlandish claim that the Attorney General engaged in an unlawful conspiracy to intimidate voters. Doc. 10 at 26 (citing 42 U.S.C. § 1985(3)).
The very case Plaintiffs rely upon, Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994), repudiates their claim under section 1985. To state a viable cause of action under 42 U.S.C. § 1985(3), a plaintiff must allege:
(1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3)an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Id. at 652–53 (emphasis added). “In so doing, the plaintiff must show that the conspiracy was motivated by a class-based animus.” Id. at 653. This claim fails for at least two reasons. First, Plaintiffs have made no allegations, and offered no evidence, that the purported conspiracy “was motivated by a class-based animus,” or even against what class General Paxton was allegedly discriminating. Moreover, General Paxton cannot engage in a “conspiracy” with his own “employees, including the signatory to the letter in question”—the only supposed conspirators Plaintiffs identify. See Doc. 10 at 26. “It is a long-standing rule in this circuit that a ‘corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.’” Hilliard, 30 F.3d at 653 (citation omitted). Thus, the letter that Plaintiffs cite as evidence of conspiracy, which was written by an employee of the Office of the

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Attorney General, Doc. 10-2, is attributable to General Paxton. Under Section 1985, there can be no conspiracy between General Paxton and his agent. See id.
Second, Plaintiffs cannot establish that General Paxton has acted with the intent to deprive anyone of their vote. See id. When he explained that misapplication of the Election Code’s “disability” provision could implicate the Code’s criminal liability provisions, General Paxton’s purpose was to respond to a legislative request for his opinion on the law and accomplish one of the primary functions of his office. The opinion merely states the law regarding the giving of false information in connection with a request for a ballot by mail and even concludes by stating “whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.” Doc. 10-2 at 6. Plaintiffs’ characterization of this opinion as voter intimidation is belied by the actual content of Attorney General Paxton’s letter and press release, and cannot serve as the basis for a viable claim under Section 1985 or the Voting Rights Act.
Third, Plaintiffs do not even argue that the supposed conspiracy was motivated by racial animus. But the Fifth Circuit has held that “the only conspiracies actionable under section 1985(3) are those motivated by racial animus.” Cantu v. Moody, 933 F.3d 414, 419 (5th Cir. 2019) (quoting Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987)).
Plaintiffs also appear to allege a claim under section 11(b) of the Voting Rights Act, see Doc. 10 at 26, which provides: “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.” 52 U.S.C. § 10307(b). As an initial matter, Plaintiffs have not established that they have a private right of action under this provision. The Voting Rights Act explicitly authorizes the United States Attorney General to bring a civil action for injunctive relief to stop a practice prohibited by Section 11, but it says nothing about extending that enforcement authority to private parties. See 52 U.S.C. § 10308(d). Furthermore, the Supreme Court has established stringent standards for implied

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causes of action, and Plaintiffs make no effort to satisfy them. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001); see also, e.g., Ziglar v. Abbasi, 137 S.Ct. 1843, 1856 (2017) (“If the statute does not itself so provide, a private cause of action will not be created through judicial mandate.”). Thus, Plaintiffs are not permitted to bring a cause of action pursuant to Section 11.
Even if a cause of action exists under Section 11, Plaintiffs’ claim would fail for many of the same reasons they have no claim under section 1985. “Limited precedent on Section 11(b) indicates that, in order to succeed on such a claim, a plaintiff must show both [1] an act of intimidation or attempt to intimidate, and [2] that the act was done with the specific intent to intimidate or attempt to intimidate.” Parson v. Alcorn, 157 F. Supp. 3d 479, 498 (E.D. Va. 2016) (citing Olagues v. Russoniello, 770 F.2d 791, 804 (9th Cir. 1985)); see also United States v. McLeod, 385 F.2d 734, 740 (5th Cir. 1967); Am. Fed’n of St., Cnty. & Mun. Emps., Council 25 v. Land, 583 F. Supp. 2d 840 (E.D. Mich. 2008). Section 11 “does not protect voters against inadvertent or technical violations of voting procedures but against conduct intended to ‘intimidate, threaten, or coerce.’” Willingham v. Cnty. of Albany, No. 04-369, 2005 WL 1660114 at *7 (N.D.N.Y. July 12, 2005) (citation omitted).
Ultimately, Plaintiffs’ allegations come nowhere close to meeting the standard required for either a section 1985 or a Voting Rights Act claim. The Attorney General is not attempting to stop people from voting. Rather, the Legislature has established eligibility criteria for mail-in voting, and the Attorney General has explained the contours of the law in response to an inquiry from an elected official. General Paxton’s response to a legislator’s request for clarification on a point of law does not meet either element of a voter-intimidation claim under Section 11(b). Under the first element, Plaintiff’s allegation is an impermissibly broad construction of the word “intimidate”—accepting this premise would mean that any time a state’s attorney general gives an opinion as to how election laws may be prosecuted, the attorney general has engaged in voter intimidation. See McLeod, 385 F.2d at 740. Such a construction would impermissibly impinge on one of the Office of the Attorney General’s

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core functions, which is to advise the public of its position on uncertain questions of public law. Accordingly, the Court should decline to grant preliminary injunctive relief on Plaintiffs’ voter
intimidation claims. E. Plaintiffs Will Not Prevail on Their First Amendment Claims.
Finally, Plaintiffs also claim that Attorney General Paxton threatened their rights to free speech. Doc. 10 at 20–22. For the reasons discussed above, Plaintiffs’ accusation misapprehends the Attorney General’s responsibilities and the letter he sent in fulfillment of those responsibilities. But Plaintiffs’ free speech claim should fail for two additional reasons.
First, the First Amendment does not protect Plaintiffs’ asserted right to encourage otherwise healthy individuals to vote by mail. The First Amendment does not protect speech that promotes or incites illegal activity. E.g., United States v. Williams, 553 U.S. 285, 298 (2008). Under Texas law, it is a crime for voters to submit knowingly false applications to vote by mail, or for third parties to encourage voters to do so. See TEX. ELEC. CODE § 84.0041; see also id. § 276.013. As such, unless the Texas Supreme Court agrees with the Plaintiffs’ reading of section 82.002, Plaintiffs’ First Amendment rights are not implicated by his letter. Though Attorney General Paxton is confident that the Supreme Court will not agree with their atextual interpretation, this is yet another reason for this Court to abstain.
Second, the relief Plaintiffs request—an injunction prohibiting Attorney General Paxton from “from threatening voters or voter groups with criminal or civil sanction for voting by mail or communicating with or assisting voters in the process of vote by mail,” Doc. 10 at 34—would violate his rights to comment on matters of public concern. The freedom of speech safeguards “the right of individuals to speak as they think on matters vital to them.” Thornhill v. Alabama, 310 U.S. 88, 95 (1940). And it relies on “the process of education and discussion”—not injunctions against speech that litigants disfavor—to respond to political viewpoints regarded as false or unwise. Id. “Indeed, the

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Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general.” Rangra v. Brown, 566 F.3d 515, 524 (5th Cir. 2009), vacated on other grounds en banc, 584 F.3d 206 (5th Cir. 2009).
Therefore, to the extent that Plaintiffs’ claims are based on Attorney General Paxton’s protected speech, they are meritless. In 2019, this Court dismissed a similar claim against General Paxton based on statements that he made in a press release, noting that the plaintiffs there could not sustain a claim based on “an alleged intimidating press release.” Texas League of United Latin American Citizens, et al. v. Whitley, et al., Case No. 5:19-cv-00074-FB, Doc. 131 (W.D. Tex. Mar. 27, 2019). Plaintiffs raise virtually the same claim here, and it should be dismissed for the same reasons.
INJUNCTIVE RELIEF AT THIS POINT IN THE ELECTION CYCLE IS IMPROPER 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., 140 S. Ct. 1205, 1207 (2020). For example, in Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam), the Supreme Court relied on “considerations specific to election cases” to caution against federal court interference with impending state elections. It explained that “[c]ourt orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. at 4–5. To account for those risks, a federal court considering a request to enjoin state election laws before an impending election must consider potential conflicts with the timing of elections and appellate proceedings. See id. Similarly, the Fifth Circuit declined to grant immediate relief on a Voting Rights Act claim even though several months remained before the general election. See Veasey v. Abbott, 830 F.3d 216, 243 (5th Cir. 2016) (en banc) (instructing the district court in July 2016 to “take the requisite time to reevaluate the evidence” and fashion a remedy to apply after the November 2016 election).

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In this case, the Court has already recognized that Plaintiffs are seeking injunctive relief too close to the July election. See Doc. 15 (noting “the practical time reality is that, even if plaintiffs were to prevail, a stay of this Court’s ruling and the appeal thereof would likely go beyond the mail ballot request deadline”). Plaintiffs themselves admit that “[t]housands of vote by mail applications are pouring in now” and that “[m]ail ballots are expected to start being sent to voters in response to their request, on May 24, 2020.” Doc. 10 at 6. Right now, local officials are processing vote-by-mail applications.
Plaintiffs have not acted diligently. They delayed serving Defendants and filing their motion for a preliminary injunction. With the process they seek to change already underway, it is too late for a federal court to issue injunctive relief.
AN INJUNCTION WOULD UNDERMINE THE PUBLIC INTEREST Even if Plaintiffs could demonstrate a substantial likelihood that they will prevail on the merits, they also must establish an irreparable injury, that the injunction will serve the public interest and that the threatened injury outweighs any damage that the injunction may cause the opposing party. Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir.1989). As explained above, Plaintiffs cannot establish an irreparable injury because they have not proven that they will be deprived of the safe exercise of the franchise in the State’s upcoming elections. The equitable factors of the injunctive relief analysis tilt heavily against the issuance of an injunction, especially the overbearing one Plaintiffs ask the Court to adopt. The State has a weighty interest in the equal, fair, and consistent enforcement of its laws. Maryland v. King, 567 U.S. 1301, 1303 (2012) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (citations omitted)). The “inability [for a State] to enforce its duly enacted [laws] clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018);

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Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (recognizing that, when a duly enacted law cannot be enforced, “the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws”).
That interest is especially potent in the middle of a global health crisis. If citizens lose confidence in the evenhanded application of the State’s election laws in these precarious times, the foundations of our system of representative government will weaken. The path forward is clear: the State must maintain the consistency of its laws, but work within the bounds of the law, as prescribed by the Texas Legislature, to protect the health and safety of all Texans. Because that is exactly what the State has been doing, see Section (A), supra, the public interest favors the continuation of those efforts, not a sudden, irrevocable halt to them.
PLAINTIFFS’ PROPOSED INJUNCTION IS OVERBROAD But even if some injunctive relief were proper, despite the arguments above, Plaintiffs’ proposed injunction would be overbroad. Plaintiffs request an injunction protecting not only “the plaintiffs” but also “voters like the plaintiffs” and non-party “voters or voter groups.” Doc. 10 at 34; see also Doc. 10-5 at 2. As the Fifth Circuit recently explained, when plaintiffs do “not sue as class representatives,” a “district court lack[s] authority to enjoin enforcement of [the challenged law] as to anyone other than the named plaintiffs.” In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). Here, Plaintiffs have not sued as class representatives. An injunction prohibiting enforcement of Texas law as to non-plaintiffs would be improper. Moreover, and even as to Plaintiffs, no injunction based on a finding of discrimination can require the State to expand eligibility to vote by mail. If the “discrimination” of allowing only some voters to vote by mail must be remedied, it can be remedied by either expanding or contracting eligibility.

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As the Supreme Court recently reiterated, “[w]hen the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698 (2017) (internal quotation marks omitted). And “[b]ecause the manner in which a State eliminates discrimination ‘is an issue of state law,’ upon finding state statutes constitutionally infirm, [the Supreme Court] ha[s] generally remanded to permit state courts to choose between extension and invalidation.” id. at 1698 n.23 (quoting Stanton v. Stanton, 421 U.S. 7, 18 (1975)). That the plaintiffs have not sought invalidation “does not restrain the Court’s judgment.” Morales-Santana, 137 S. Ct. at 1701 n.29. Thus, rather than decide this policy issue for Texas, the court should “leave it to [the State] to select” how to remedy the purported problem with its law, id. at 1686.
If the Court insists on picking a remedy, Morales-Santana requires it to “strik[e] the discriminatory exception” and “extend[] the general rule.” 137 S. Ct. at 1699. Here, the general rule requires in-person voting. It is the exceptions allowing limited groups of people to vote by mail that Plaintiffs consider discriminatory. This Court cannot extend that supposedly discriminatory exception in derogation of the general rule chosen by the Texas Legislature.
CONCLUSION The Court should abstain from ruling on Plaintiffs’ motion for preliminary injunction and dismiss this suit without prejudice under the Pullman abstention doctrine. Alternatively, Plaintiffs’ motion for preliminary injunction should be denied.

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Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/Michael R. Abrams MICHAEL R. ABRAMS Texas Bar No. 24087072 ANNE MARIE MACKIN Texas Bar No. 24078898 CORY A. SCANLON Texas Bar No. 24104599 Assistant Attorneys General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 michael.abrams@oag.texas.gov anna.mackin@oag.texas.gov cory.scanlon@oag.texas.gov
Counsel for State Defendants

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CERTIFICATE OF SERVICE I hereby certify that on May 12, 2020 a true and correct copy of the foregoing document was served via the Court’s CM/ECF system to all counsel of record.
/s/ Michael R. Abrams MICHAEL R. ABRAMS Assistant Attorney General

State Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction

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_____
Case 5:20-cv-00438-FB Document 39-1 Filed 05/12/20 Page 1 of 4

GOVERNOR GREG ABBOTT

May 11,2020

FILED IN THE OFFCE OF THE SECRETARY OF STATE 01C LOCK

raeuth R. Hughs
State Capitol Room 1E.8 Austin, Texas 78701

Secretary o State

Dear Secretary Hughs:

Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:

A proclamation concerning early voting for special elections to occur on July 14, 2020.

The original of this proclamation is attached to this letter of transmittal.

Respectfully submitted,

$

Clerk to the Governor GSD/gsd Attachment

Posi OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VoICE) DIAL 7-1-1 FOR RELAY SERVICES

EXHIBIT
A

Case 5:20-cv-00438-FB Document 39-1 Filed 05/12/20 Page 2 of 4
PROCLAMATION
BY THE
(!unrtwr uffIjitzfr uf?JJxiz
TO ALL TO WHOM THESE PRESENTS SHALL COME:
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 4 18.014 of the Texas Government Code that the novel coronavirus (COVID19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas; and
WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code, and renewed that determination on April 17, 2020; and
WHEREAS, I have issued executive orders, proclamations, and suspensions of Texas laws in response to the COVID-19 disaster, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and
WHEREAS, I issued a proclamation on March 16, 2020, ordering a special election on July 14, 2020, to fill the vacancy in Texas State Senate District No. 14; and
WHEREAS, on March 20, 2020, I issued a proclamation postponing the runoff primary election date from May 26, 2020, to July 14, 2020; and
WHEREAS, I also issued a proclamation suspending Sections 4 1.0052(a) and (b) of the Texas Election Code and Section 49.103 of the Texas Water Code to the extent necessary to allow political subdivisions that would otherwise hold elections on May 2, 2020, to move their general and special elections for 2020 only to the next uniform election date, occurring on November 3, 2020; and
WHEREAS, I subsequently issued proclamations on April 2, April 6, April 8, and May 8, 2020, authorizing certain political subdivisions to call emergency special elections on July 14, 2020; and
WHEREAS, Texas law provides that eligible voters have a right to cast a vote in person; and
WHEREAS, as counties across Texas prepare for the upcoming elections on July 14, 2020, and establish procedures for eligible voters to exercise their right to vote in person, it is necessary that election officials implement health protocols to conduct elections safely and to protect election workers and voters; and
WHEREAS, in order to ensure that elections proceed efficiently and safely when Texans go to the poiis to cast a vote in person during early voting or on election day, it is necessary to increase the number of days in which polling locations will be open during the early voting period, such that election officials can implement appropriate social distancing and safe hygiene practices; and
FILED IN THE OFFICE OF THE SECRETARY OF STATE
$ 3civ O’CLOCK
MAY 11 2020

Case 5:20-cv-00438-FB Document 39-1 Filed 05/12/20 Page 3 of 4

Governor Greg Abbott May 11, 2020

Proclamation Page 2

WHEREAS, Section 85.00 1(a) of the Texas Election Code provides that the period for early voting by personal appearance begins 17 days before election day; and
WHEREAS, Section 85.001(b) of the Texas Election Code provides that the period for early voting for a runoff primary election begins 10 days before election day; and
WHEREAS, in consultation with the Texas Secretary of State, it has become apparent that strict compliance with the statutory requirements relating to the duration of early voting contained in Sections 85.001(a) and 85.001(b) of the Texas Election Code would prevent, hinder, or delay necessary action in coping with the COVID-19 disaster; and
WHEREAS, pursuant to Section 418.0 16 of the Texas Government Code, the Governor has the express authority to suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.
NOW, THEREFORE, I, GREG ABBOTT, Governor of Texas, under the authority vested in me by the Constitution and laws of the State of Texas, do hereby suspend Sections 85.001(a) and 85.001(b) of the Texas Election Code to the extent necessary to require that, for any election ordered or authorized to occur on July 14, 2020, early voting by personal appearance shall begin on Monday, June 29, 2020, and shall continue through the fourth day before election day, excluding any legal state or federal holidays. I further amend the proclamations issued on April 2, April 6, April 8, and May 8, 2020, authorizing emergency special elections, and the proclamation issued on March 16, 2020, ordering a special election to fill the vacancy in Texas State Senate District No. 14, so as to require that for each of these elections to be held on July 14, 2020, early voting by personal appearance shall begin on Monday, June 29, 2020, in accordance with the above suspension.
The Secretary of State shall take notice of this proclamation and shall transmit a copy of this order immediately to every County Judge of this state and all appropriate writs will be issued and all proper proceedings will be followed to the end that said elections may be held and their results proclaimed in accordance with law
IN TESTIMONY WHEREOF, I have hereto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 11th day of May, 2020.
/€ ,GREG ABBOTT Governor of Texas
FILED IN THE OFF1CE OF THE SECRETARY OF STATE 3cfr O’CLOCK
MAY 11 2020

Case 5:20-cv-00438-FB Document 39-1 Filed 05/12/20 Page 4 of 4

Governor Greg Abbott May 11,2020

Proclamation Page 3

ATTESTED BY:
RUTH R. HUGHS Secretary of State

FILED IN THE OFFiCE OF THE SECRETARY OF STATE
5 efr O’CLOCK
MAY 11 2020

Case 5:20-cv-00438-FB Document 39-2 Filed 05/12/20 Page 1 of 2

From: To: Subject: Date: Attachments: Importance: Sensitivity:

Elections Internet Elections Internet MASS EMAIL (CC/EA/VR - 910) - Proclamation regarding early voting for July 14, 2020 Elections Monday, May 11, 2020 5:57:22 PM image001.png High Personal

Dear Election Officials: Earlier today, Governor Greg Abbott issued a proclamation suspending certain provisions of the Texas Election Code to expand the early voting period for the July 14, 2020 primary runoff election and other elections occurring on that date. Pursuant to the Governor’s proclamation, the early voting period for any election authorized to occur on July 14, 2020 will begin on Monday, June 29, 2020 and last through Friday, July 10, 2020, excluding any legal state or federal holidays. As the proclamation recognizes, this expansion will allow for increased in-person voting opportunities for the July 14, 2020 elections while maintaining appropriate social distancing standards in response to the COVID-19 disaster. We will update the primary runoff calendar and issue a revised copy later this week. In connection with the Governor’s proclamation, we would like to provide additional guidance on several items:
1. Extended Early Voting Hours: As a reminder, in addition to the increased number of early voting days pursuant to the Governor’s proclamation, the Texas Election Code allows you flexibility to offer voters extended early voting hours. Specifically, you can provide extended hours beyond the minimum number of hours required for weekdays during early voting, as set forth in Section 85.005, in order to allow persons more opportunities to vote after work. You can also provide for more than the minimum of five hours on Sunday in counties over 100,000 in population or those that received a petition for weekend voting, as detailed in Section 85.006.
2. CARES Act Funding: The State of Texas has requested approximately $24.5 million in HAVA emergency funds from the federal government through the Coronavirus Aid, Relief and Economic Security (CARES) Act. With the required 20% cash match, the total amount allotted to Texas through the CARES Act is $29.4 million. As authorized by Congress, the funds must be used “to prevent, prepare for, and respond to coronavirus, domestically or internationally, for the 2020 Federal election cycle”—including any funds incurred to provide for expanded early voting pursuant to the Governor’s proclamation or to pay for extended early voting hours due to the COVID-19 disaster. We intend to sub-grant the CARES Act funding to counties, which can use Chapter 19 funds or county funds to meet the match requirement. We will be receiving the funds and implementing the sub-grant process very soon. To that end, our office will be holding a webinar tomorrow (May 12, 2020) to give you an overview of the CARES Act funding and provide further details on the sub-grant process.
3. Health and Safety Guidelines for In-Person Voting: Our office is currently preparing guidance for election officials and voters regarding the proper conduct of in-person voting during the ongoing public health disaster. The guidance, modeled on minimum health protocols recently issued by the Texas Department of State Health Services for individuals and businesses, will contain detailed recommendations for protecting the health and safety of voters and election workers at the polls. We anticipate issuing this guidance by early next week, and we will continue to work closely with you in the coming weeks to ensure that our
EXHIBIT
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Case 5:20-cv-00438-FB Document 39-2 Filed 05/12/20 Page 2 of 2
elections are conducted with the utmost safety and security. Please let us know if you have any questions or concerns. As always, thank you for all that you do for Texas elections. Keith Ingram Director, Elections Division Office of the Secretary of State 800-252-VOTE(8683) www.sos.state.tx.us/elections/index.shtml For Voter Related Information, please visit:
The information contained in this email is intended to provide advice and assistance in election matters per §31.004 of the Texas Election Code. It is not intended to serve as a legal opinion for any matter. Please review the law yourself, and consult with an attorney when your legal rights are involved.

Case 5:20-cv-00438-FB Document 39-3 Filed 05/12/20 Page 1 of 5
EXHIBIT
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Case 5:20-cv-00438-FB Document 39-4 Filed 05/12/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas; Ruth

§

Hughs, Texas Secretary of State, Dana

§

Debeauvoir, Travis County Clerk, and

§

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

D ECLARATION OF BRU CE SHERBET

1.

My name is Bruce Sherbet. I currently serve as the Elections Administrator for Collin

County, Texas, and have been serving in this capacity since December 2015.

2.

I previously served as Elections Administrator in Dallas County for 24 years, and spent

another two years doing the same work for Ellis County before being appointed as the Elections

Administrator for Collin County. I have been involved in election-related work for over 35 years.

3.

Collin County will be holding a primary runoff election on July 14, 2020. In light of

the COVID-19 pandemic, Collin County will be taking precautionary measures to ensure the safety

of voters and poll workers.

4.

At this time, the safety measures that Collin County plans on implementing include

the following:

Thoroughly training election workers on best practices for setting up polling locations

for social distancing, including determining maximum capacity inside the voting areas.

Declaration of Bruce Sherbet

EXHIBIT Page 1 of 3
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Case 5:20-cv-00438-FB Document 39-4 Filed 05/12/20 Page 2 of 3

Providing a table-mounted Plexiglas protective shield at each voter check-in station.

Poll workers will be stationed behind the protective shield as they are processing the voters.

Providing protective masks for all election workers. A new mask will be provided for

each day of Early Voting and on Election Day.

Providing sanitizing wipes and hand sanitizer to each location in sufficient quantities

as to accommodate voter turnout and equipment sanitation needs. Election workers will be trained on proper procedures for sanitizing the items touched by voters.

Providing social distancing floor decals to polling places to ensure safety

recommendations are practiced inside and outside the location.

Offering cotton swabs to voters to use as a disposable stylus for marking their ballot

selections on the touch screen ballot marking device.

Placing additional election workers in polling places to assist with changes relating to

implementation of the safety measures.

Preparing for increased curbside voting traffic at polling places.

Conducting a thorough post-election analysis of the safety measures used in the July

14, 2020 Primary Runoff Election including seeking input from voters and election

workers, and making any necessary adjustments to the safety measures in preparations

for the November 3, 2020 General Election.

5.

Collin County may modify or expand these measures as necessary to protect the health

and safety of voters and poll workers.

Declaration of Bruce Sherbet

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6.

Based on my personal conversations with other election officials in Texas, I

understand that other counties in Texas will be implementing similar measures for the July elections.

I declare under penalty of perjury that the foregoing is true and correct.
:i, Executed on May 2020.

Elections Administrator Collin County, Texas

Declaration of Bruce Sherbet

Page 3 of 3

Case 5:20-cv-00438-FB Document 39-5 Filed 05/12/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas; Ruth

§

Hughs, Texas Secretary of State, Dana

§

Debeauvoir, Travis County Clerk, and

§

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Before the Court is Plaintiffs’ Motion for Preliminary Injunction. After considering the motion, the responses thereto, the evidence and the applicable law, the Court is of the opinion that the motion lacks merit and should be denied. It is therefore ORDERED that Plaintiffs’ Motion for Preliminary Injunction is hereby DENIED.

Date

HON. FRED BIERY

UNITED STATES DISTRICT JUDGE

 
 Case 5:20-cv-00438-FB Document 44 Filed 05/13/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic §

Party, JOSEPH DANIEL CASCINO,

§

SHANDA MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiff,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

§

Defendants.

§

CIVIL ACTION NO. 5: 20-CV-00438-FB

MEMORANDUM OF THE MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
_____________________________________________________________________

INTRODUCTION

Amici is an official legislative caucuses of the Texas Legislature.

The Mexican American Legislative Caucus (MALC) was founded in 1973 in the Texas

House of Representatives by a small group of lawmakers of Mexican American heritage for the

purpose of strengthening their numbers and better representing a united Latino constituency

across the state. MALC is the oldest and largest Latino legislative caucus in the United States.

MALC and its members have sponsored and supported legislation that encourages voting and

offers fair and equal opportunities to participate in the electoral process and has opposed the

adoption of legislation that limits and suppresses the right to vote.

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Purpose and Relevance of Amici Curiae Brief The proposed amicus brief focuses on the substantial evidence of discriminatory impact of the State’s mail ballot restrictions and therefore, the likelihood of success on Plaintiffs’ claims as a result and on the irreparable injury likely to be felt by Texas voters as evidenced by the threats of the Texas Attorney General of criminal prosecutions on voters and third parties. The evidence and facts on these issues is relevant in the evaluation of the preliminary injunction standards, and weighs in favor of granting the injunction sought by Plaintiffs. All of the parties have consented via email to the filing of this amicus brief in support of the Plaintiffs’ Motion for Preliminary Injunction. THEREFORE, the Mexican American Legislative Caucus prays that this Court allow and consider this amicus curiae brief in support of the Plaintiffs Preliminary Injunction Motion.
STANDARD OF REVIEW To support a preliminary injunction, a party seeking a preliminary injunction must establish that: he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). This brief will focus on the two of these factors: likelihood of success; and irreparable harm. A. Plaintiffs Are Likely to Succeed on the Merits. The first of the Winter factors asks whether the Plaintiffs are likely to succeed on the merits of their claims. Here the Plaintiffs have raised an array of claims upon which their lawsuit is grounded and upon which they are likely to succeed. Among them is the claim that
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the manner in which the State of Texas has, through its Attorney General, has chosen to inforce the mail in ballot provisions makes the challenged provisions void for vagueness. See Dkt. 10, pp. 22-25. (Plaintiff’s Motion for Preliminary Injunction). Plaintiffs also assert that the interpretation of the mail ballot statutes by the Attorney General has a discriminatory impact on Plaintiffs and minority voters. Id. Plaintiffs are likely to succeed on these claims.
1. A plain reading of the Statute allows for mail voting from fear of the COVID 19. Texas law sets out the rules for construing the meaning of state statutes. In analyzing a statute, a court must discern the meaning of the policy, and the focus must be exclusively or at least primarily on the words used. See Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991) (en banc). The principal rule of statutory construction is that the judiciary is to give effect to the intent of the legislature. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Those specific, unambiguous provisions in the statute are the current law and should not be construed by a court to mean something other than what the plain words say unless there is an obvious error such as a typographical error that resulted in the omission of a word or absurdity. See City of Amarillo v. Martin, 971 S.W.2d 426, 428 n.1 (Tex. 1998); Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 135 (Tex. 1994) (Hecht, J., concurring). The court must declare and enforce the law as made by the legislature without regard to the policy or wisdom thereof or the disastrous or mischievous result it may entail. TGSNOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). If the statute is clear and unambiguous, extrinsic aids and canons of construction are inappropriate, and the statute should be given its common, everyday meaning. Similarly, under federal law, the United States Supreme Court has determined that in all statutory construction cases, courts should begin with the language of the statute. The first step “is
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Case 5:20-cv-00438-FB Document 44 Filed 05/13/20 Page 4 of 8
to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” 519 U. S., at 340.
Texas law allows voting by mail for registered voters who meet one of the qualifications stated in the Election Code. See Tex. Elec. Code Ch. 82. A voter is qualified to vote by mail if he (1) anticipates being absent from his county of residence on election day; (2) has an illness or other physical condition that disables him from appearing at the polling place; (3) is 65 or older; or (4) is confined in jail. Tex. Elec. Code §§ 82.001-4.
The critical language here is: “(2) has an illness or other physical condition that disables him from appearing at the polling place”. (emphasis added). Read together with the election codes definition of “disability” makes the language clear. The definition of disability is a straightforward legal provision with obvious, unambiguous legislative intent: “A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” Tex. Elec. Code § 82.002 (a). There are two operative parts to this definition. First, the voter must have “a sickness or physical condition”. Secondly, this condition or illness must prevent the voter from appearing at the polling place without needing personal assistance or injuring the voter’s health.
The State District Court in Austin, Texas found: “COVID-19 is a global respiratory virus that poses an imminent threat of disaster, to which anyone is susceptible and which has a high risk of death to a large number of people and creates substantial risk of public exposure because of the disease's method of transmission.” Exhibit 4 to Dkt 10, (Plaintiff’s Preliminary Injunction
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Case 5:20-cv-00438-FB Document 44 Filed 05/13/20 Page 5 of 8
Motion, Exhibit 4, Temporary Injunction Order, p. 3). 2. The Texas Attorney General’s interpretation of the mail ballot provisions makes the Texas law vague. The Texas Attorney General has, contrary to the plain language of the statute and in spite
of the Travis County District Court’s Order, declared that such a reading of Texas law was unlawful and criminal. See Dkt. 10, pp. 23-24 (Plaintiff’s Motion for Preliminary Injunction).
General Paxton is the chief law enforcement officer of the Texas Election Code provisions. His prosecutions and threats of prosecutions of alleged violations of those provisions present a real dilemma and create vagueness about what these statutes mean. Therefore, it is likely that Plaintiffs will prevail on their claims.
3. The Texas Attorney General’s interpretation of the mail ballot provisions discriminates against Latinos in violation of Section 2 of the Voting Rights Act.
The Plaintiffs also assert: “In the pandemic circumstances, General Paxton’s interpretation of the vote by mail statutes results in racially discriminatory effects on racial minority’s right to vote by decreasing turnout of racial minorities and increasing the percentage of the electorate that is Anglo.” Dkt. 10, p. 30 (Plaintiffs’ Motion for Preliminary Injunction).
The facts of this case show that Plaintiffs will succeed on this claim as well. While the Plaintiffs frame this claim as a 14th Amendment claim, the claim implicates Section 2 of the Voting Rights Act. Section 2 prohibits states or their political subdivisions from enacting voting standards, practices, and procedures “which result[ ] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301 (a). A violation of § 2 is established if, “based on the totality of circumstances,” the challenged electoral process is “not equally open to participation by members of a [racial minority group] in that its members
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have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301 (b). “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and [majority] voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986); see also Allen v. State Bd. of Elections 393 U. S. 544, 566-67 (1969) (holding the language “voting qualifications or prerequisite to voting, or standard, practice, or procedure” was employed in § 2 in order to be “all-inclusive of any kind of practice” that might be used to deny citizens the right to vote).
Here the data is clear. As General Paxton has interpreted and intends to inforce the mail provisions of the election code persons between the ages of 18 and 64 will not have the same access to vote by mail as will those over the age of 64. In Texas, elections are, even today polarized along racial and ethnic lines. See Perez v. Abbott, 250 F. Supp. 3d 123, 146, 154, 164, 174 (W.D. Tex. 2017)(“Defendants stipulated during trial that racially polarized voting exists throughout Texas, other than in Nueces and Kleberg Counties”). More to the point, as detailed in Plaintiffs’ Motion for Preliminary Injunction, limiting the availability of mail ballots to those younger than 65 years of age, disproportionately impacts voters of color. See Dkt. 10, pp. 12-13. Latinos are a younger population generally. So while Latinos are 39.6 compared to Anglos at 41.5%, of the general population, elderly Anglos outnumber elderly Latinos 3 to 1 and outnumber elderly African Americans 7 to 1. Coupled with a long history of discrimination in voting and the lingering effects of that
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discrimination as manifest in lower educational and socio-economic achievement, it is likely that Plaintiffs will also succeed on the merits of their claim that General Paxton’s interpretation of Texas vote by mail laws will discriminate against minority voters in violation of the fourteenth amendment and Section 2 of the Voting Rights Act.

B. Plaintiffs Will Suffer Irreparable Injury

A state court agreed with the Plaintiffs and declared that because of the pandemic all

voters were eligible to vote by mail. General Paxton declared that this was unlawful and

criminal. Without injunctive relief, Plaintiffs will suffer irreparable harm because they will be

forced to choose between voting and risking their health or their family’s wellbeing. The State

of Texas believes that allowing otherwise healthy voters to vote by mail because of the risk of

transmission of COVID-19 is illegal. The “Hobson’s Choice” offered by the Defendants is

exactly that, no choice at all. Clearly, without this Court’s intervention, Plaintiffs and voters

across Texas will be irreparably injured.

As noted in one of Thomas Jefferson's historic truisms: “We do not have government by

the majority. We have government by the majority who participate." The State Defendants

efforts to limit those who can participate is of grave concern to MALC. Therefore, MALC

offers this memorandum of law and facts to assist the court in its review of the request before it.

MALC asks that Plaintiffs’ Motion for Preliminary Injunction be granted.

DATED: May 13, 2020

Respectfully submitted,

___/s/ Jose Garza______________ JOSE GARZA SBN 07731950

LAW OFFICE OF JOSE GARZA 405 N. St. Mary’s, Suite 700 San Antonio, Texas 78209

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Case 5:20-cv-00438-FB Document 44 Filed 05/13/20 Page 8 of 8 210-392-2856 COUNSEL FOR MALC
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 Case 5:20-cv-00438-FB Document 48 Filed 05/13/20 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic §

Party, JOSEPH DANIEL CASCINO,

§

SHANDA MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

§

Defendants.

§

Case No. 5:20-cv-00438

BRIEF OF THE REPUBLICAN PARTY OF TEXAS AS AMICUS CURIE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
INTEREST OF AMICUS CURIAE Amicus Curiae,1 the Republican Party of Texas (“RPT”), is a political party recognized by the Texas Election Code. We believe that elections are fair when the process by which elections are conducted is consistent and predictable. We support elections free from the flames of fear and

1 Amicus Curiae and its counsel state that none of the parties to this case, including the intervening parties, nor their counsel authored this brief in whole or in part, nor made any monetary contribution for the preparation or submission of this brief.

Case 5:20-cv-00438-FB Document 48 Filed 05/13/20 Page 2 of 40
uncertainty fanned by the Texas Democratic Party and liberal activists, whose true goal is to create a voting environment where checks and balances are few, and voter fraud can thrive. Our focus is to ensure that elections are conducted safely and consistently with the letter and spirit of the laws of Texas. Challenges to duly enacted election procedures, such as those brought by Plaintiffs in the present case, can only damage the integrity and legitimacy of the election results. After all, “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974). The Republican Party of Texas thus has a significant interest in this important case.
INTRODUCTION This Court should deny Plaintiffs’ claims that seek to have this Court prohibit the State of Texas from enforcing duly enacted state election laws that prevent voter fraud and preserve voter confidence in the integrity of elections. Specifically, Plaintiffs challenge section 82.002 of the Texas Election Code and seek to prohibit the State of Texas from enforcing the requirements necessary to receive a mail ballot for the runoff election on July 14, 2020 (“Challenged Provision”). The Court should not enjoin the Challenged Provision because the State of Texas has valid interests in preventing voter fraud and in protecting voter confidence in the integrity of its elections, and the U.S. Constitution specifically delegates to state legislatures responsibility for determining the “Times, Places and Manner” of federal elections. U.S. Const. art I, § 4, cl. 1; Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-197 (2008). Further, enjoining the Challenged Provision so close in time before an election would wreak havoc among election administrators,
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who would have scant time and possibly very few resources to implement new procedures. See Purcell v. Gonzalez, 849 U.S. 1, 4-6 (2006).
It is important during these uncertain times that the fundamental pillars of our form of government, such as separation of powers and honest elections, remain intact. While Amicus Curiae recognize that adjustments have been made for upcoming elections, Plaintiffs’ requested injunction is not the proper way to protect the integrity of the electoral process. Judicial intervention and inappropriate and burdensome injunctions will only lead to confusion and chaos in upcoming elections when steadiness and adherence to proper procedures are needed now more than ever.
Finally, as this Court noted, because the runoff election is set for July 14, 2020, the timing of Plaintiffs’ request will likely render any requested relief moot. A stay and appeal of this Court’s ruling, if necessary, would likely go beyond the mail ballot request deadline, rendering moot any relief.
ARGUMENT I. THE COURT SHOULD DENY PLAINITIFFS’ MOTION FOR PRELIMINARY
INJUNCTION BECAUSE THEY HAVE NO LIKELIHOOD OF SUCCESS ON THE MERITS AND IT IS CONTRARY TO THE PUBLIC INTEREST. “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movement, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (alteration in original) (citation omitted). Among other things, a movant requesting a preliminary injunction must prove the likelihood of success on the merits of their underlying claims and that granting their requested injunction is in
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the public interest. Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018). Here, Plaintiffs are not only unlikely to succeed on the merits of their underlying claims, but are also requesting an injunction that is contrary to the public interest.
A. The State of Texas has a Valid Interest in Preventing Voter Fraud and in Protecting Voter Confidence in the Integrity of Elections.
When analyzing an alleged burden on the right to vote from a challenged law, the wellestablished Anderson/Burdick framework applies. See Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983). Under Anderson/Burdick, “election laws generally are not subject to strict scrutiny, even though voting rights are fundamental under the Constitution.” Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605 (4th Cir. 2016); see also Burdick, 504 U.S. at 433. In reviewing a reasonable, nondiscriminatory restriction on voting rights, such as the Challenged Provision here, the restriction is justified by a state’s “important regulatory interests.” Lee, 843 F.3d at 606 (quoting Burdick, 504 U.S. at 434). Further, as voting by absentee ballot is not a fundamental right, challenges to absentee voting laws are not subject to a strict scrutiny analysis. See McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969).
Courts across the country, including the United States Supreme Court, have routinely recognized that a state has important regulatory interests in preventing voter fraud and in protecting voter confidence in the integrity of elections. See e.g., Crawford, 553 U.S. at 194-197; Lee, 843 F.3d at 606-607; Hoffman v. Maryland, 928 F.2d 646, 649 (4th Cir. 1991); see also Griffin v. Roupas, 385 F.3d 1128, 1130-32 (7th Cir. 2004). Here, just as in the above cited cases, the Challenged Provision is easily justified by those interests. For “[v]oting fraud is a serious problem
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in U.S. elections generally … and it is facilitated by absentee voting.” Griffin, 385 F.3d at 113031.
Texas’ regulatory interest in preventing voter fraud is also supported by the fact that elections in Texas have been overturned on account of voter fraud. Recently, in De La Paz v. Gutierrez, a closely contested run-off election for a Justice of Peace seat in Kleberg County was overturned following a two-day hearing. No. 13-19-00377-CV, 2018 Tex. App. LEXIS 8687 (Tex. App.—Corpus Christi Oct. 25, 2018, no pet.) (mem. op.) (affirming judgment of the trail court). After a recount narrowed the vote differential to just six votes, seven of the sixteen votes contested by Guiterrez were thrown out by the trial court because they were cast by relatives of De La Paz who lived outside the Precinct 4 boundaries. Id. at *1-8. The trial court went on to state that “on the whole the evidence overwhelmingly established [De La Paz’s] family and friends falsified their voter registration cards by claiming residence where they did not live . . . . Their individual and collective activities . . . so tainted this election that another is necessary.” Id. at *8.
There are numerous other examples of elections being impacted by voter fraud in Texas. See, e.g., O’Cana v. Salinas, No. 13-18-00563-CV, 2019 Tex. App. LEXIS 2546 (Tex. App.— Corpus Christi Mar. 29, 2019, pet. denied) (noting, while overturning the trial court which voided a mayoral run-off election, that “[t]his case has uncovered clear and convincing evidence of election fraud, resulting in at least 31 illegal ballots being cast.”); Tiller v. Martinez, 974 S.W.2d 769, 771-72 (Tex. App.—San Antonio 1998, pet. dism’d w.o.j.) (affirming the trial court’s overturning of an election because 28 of 108 mail-in ballots were improperly invalidated, which changed the outcome of the election); Kelley v. Scott, 733 S.W.2d 312, 314 (Tex. App.—El Paso
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1987, writ dism’d w.o.j.) (overturning trail court and voiding an election because in an election

decided by one vote, a single illegal absentee ballot was improperly counted); Fuentes v. Howard,

423 S.W.2d 420, 422, 427 (Tex. Civ. App.—El Paso 1967, writ dism’d w.o.j.) (reversing the trial

court and holding that, while nine votes were illegally cast due to inappropriate assistance with

absentee ballots, there were not a sufficient number of illegal ballots to change the outcome of the

election).

Furthermore, individuals are routinely charged and convicted of voter fraud both in Texas

and throughout the United States. See, e.g., Tim Acosta, Roberstown resident pleads guilty to voter

fraud, barred from helping in future elections, Caller Times (June 14, 2018, 5:38 p.m.),

https://www.caller.com/story/news/local/2018/06/14/robstown-resident-pleads-guilty-voter-

fraud-barred-elections/703726002/; Tasha Tsiaperas, Bogus voter gets 180 days in Dallas jail for

forging mail-in ballot, The Dallas Morning News (June 20, 2018, 5:05 p.m.),

https://www.dallasnews.com/news/courts/2018/06/20/bogus-voter-gets-180-days-in-dallas-jail-

for-forging-mail-in-ballot/; Jennifer Emily, Ellis County constable convicted of voter fraud, The

Dallas

Morning

News

(June

16,

2017,

6:12

p.m.),

https://www.dallasnews.com/news/courts/2017/06/16/ellis-county-constable-convicted-of-voter-

fraud/ (convicted of six counts of voter fraud for improperly assisting with mail-in ballots); see

also, e.g., A Sampling of Recent Election Fraud Cases from Across the United States, The Heritage

Foundation, https://www.heritage.org/voterfraud (last accessed May 13, 2020).

Therefore, the Texas’ interests in preventing voter fraud and in protecting voter confidence

in the integrity of elections justifies the existence and enforcement of the Challenged Provision

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under the Anderson/Burdick framework. Plaintiffs’ underlying claims, therefore, are not likely to succeed and their request for a preliminary injunction should be denied.
B. A Similar Case from Wisconsin Is Persuasive as to How this Court Should Address Plaintiffs’ Claims.
Last month, a group of plaintiffs filed suit in the United States District Court for the Western District of Wisconsin (the “Wisconsin Case”) where, among other things, they challenged a law that required a witness signature on Wisconsin absentee ballots due to COVID-19 related concerns. See Democratic Nat'l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 57918, at *5 (W.D. Wis. Apr. 2, 2020). Despite acknowledging “the state’s asserted interests in the witness requirement as a tool against voter fraud,” the Wisconsin court enjoined the state’s ability to enforce their absentee ballot witness requirement as enacted by the Wisconsin Legislature. Id. at *64, 75-76. With the Wisconsin elections fast approaching, upon review of the district court’s order, the Seventh Circuit promptly stayed multiple provisions from the district court’s order including the provisions that enjoined enforcement of the state’s absentee ballot witness requirement. Democratic Nat’l Comm. v. Bostelmann, No. 20-1538 (7th Cir. Apr. 3, 2020).
In staying the district court’s injunction pertaining to the state’s absentee ballot witness requirement, the Seventh Circuit found “that the district court did not give adequate consideration to the state’s interests” in preventing voter fraud and in protecting voter confidence in the integrity of elections. Id. at 3. The court went on to state that “‘[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy,’ and ‘[v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government.’” Id. (quoting
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Purcell, 549 U.S. at 4). The Seventh Circuit stated that it was “concerned with the overbreadth of the district court’s order, which categorically eliminates the witness requirement applicable to absentee ballots and gives no effect to the state’s substantial interest in combatting voter fraud.” Id. (emphasis added). Here, just as Wisconsin’s interest in combatting voter fraud justified their absentee ballot witness requirement, so too are Texas’ laws which determine under what circumstances an absentee ballot will issue justified by their substantial interest in combatting voter fraud and in protecting voter confidence in the integrity of elections.
In addition, following the Wisconsin election, at least two studies have been published as “pre-prints” to evaluate the election’s impact on the spread of the virus. These two research studies show no effect. The first, titled “No Detectable Surge in SARS-CoV-2 Transmission due to the April 7, 2020 Wisconsin Election”,2 is attached hereto as Exhibit A. That study concluded, “[t]aken together, it appears that voting in Wisconsin on April 7 was a low-risk activity.” Id. A second study examining Wisconsin found that the virus’ rate of spread actually declined following the election, and declined in the three most populated counties in Wisconsin. That study entitled “Wisconsin April 2020 Election Not Associated with Increase in COVID-19 Infection Rates”,3 is attached hereto as Exhibit B. That study concluded, “[t]here was no increase in COVID-19 new case daily rates observed for Wisconsin or its three largest counties following the election on April 7, 2020, as compared to the US, during the post-incubation period.” Id.
2 Available at https://www.medrxiv.org/content/10.1101/2020.04.24.20078345v1.full.pdf 3 Available at https://www.medrxiv.org/content/10.1101/2020.04.23.20074575v1.full.pdf
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Amicus Curiae agree with the Seventh Circuit when it wisely stated that “[i]t is best to leave these decisions and any more particular prescriptions to the Commission, as it is better positioned to know what additional alternative suggestions are able to accommodate the many intersecting interests in play in the present circumstances.” Democratic Nat’l Comm. v. Bostelmann, No. 20-1538, at 4 (7th Cir. Apr. 3, 2020). “[S]triking [] the balance between discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative judgment with which [] judges should not interfere unless strongly convinced that the legislative judgment is grossly awry.” Griffin, 385 F.3d at 1131. It is inappropriate “for a federal district court to act as the state’s chief health official by taking [] step[s] for them.” Democratic Nat'l Comm., No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 57918, at *52.
C. The Supreme Court’s Purcell Doctrine Counsels Against Granting the Plaintiffs’ Injunction.
The United States Supreme Court has repeatedly held that judicial intrusion into elections must take account of “considerations specific to election cases.” Purcell, 549 U.S. at 4. These considerations include the fact that “[c]ourt orders affecting elections … can themselves result in voter confusion and consequent incentive to remain away from the polls.” Id. at 4-5. “As an election draws closer, that risk will increase.” Id. at 5. Courts must therefore weigh such factors as the harms associated with judicial action or inaction, the proximity of the upcoming election, the “possibility that the nonprevailing parties would want to seek” further review, and the risk of “conflicting orders” from such review. Id. at 4-5.
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Just as Plaintiffs have done here, plaintiffs across the Country have filed suits claiming that due to COVID-19, federal courts should interfere with election procedures—particularly as it pertains to absentee ballots. In deciding these cases, many federal courts decided to follow the logic of Purcell and stay out of elections and denied requests for temporary or emergency injunctive relief. See, e.g., Order Den. Temp. Restraining Order, Williams v. DeSantis; 1:20-cv00067-RH-GRJ (Mar. 17, 2020), ECF No. 12; Order Den. Renewed Mot. for Temp. Restraining Order & In Part Mot. for Prelim. Inj., Williams v. DeSantis, 1:20-cv-00067-RH-GRJ (Mar. 18, 2020), ECF No. 18; Order Den. Mot. for Temp. Restraining Order and Prelim. Inj., Mays v. Thurston, 4:20-cv-00341-JM (Mar. 30, 2020), ECF No. 11; Order Den. Mot. for Temp. Restraining Order and Prelim. Inj., League of Women Voters of Ohio v. LaRose, 2:20-cv-01638-MHW-EPD (Apr. 3, 2020), ECF No. 57.
Recently, on April 6, 2020, in the Wisconsin Case discussed supra Section I.B, the United States Supreme Court stayed a district court order that permitted absentee ballots to be cast after the election deadline.4 See Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 589 U.S. __, 2020 U.S. LEXIS 2195, at *1-2 (Apr. 6, 2020) (per curiam). The Supreme Court admonished the district court for “changing the election rules so close to the election date,” noting that such action “contravened” Supreme Court precedent, which “has repeatedly emphasized that
4 The Seventh Circuit had declined to stay this portion of the district court’s order as they had done with the absentee ballot witness requirement provision discussed above. With this stay from the U.S. Supreme Court, the majority of the provisions from the Wisconsin district court’s order have now been stayed. Additionally, just days after the U.S. Supreme Court stayed the order in the Wisconsin Case, after discussing the unique circumstances in which we find ourselves with COVID-19, a different Wisconsin U.S. District Court declined to adjust election procedures, citing the recent U.S. Supreme Court stay and Purcell as controlling. Taylor v. Milwaukee Election Comm'n, No. 20-cv-545-pp, 2020 U.S. Dist. LEXIS 60496 (E.D. Wis. Apr. 6, 2020).
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lower federal courts should ordinarily not alter the election rules on the eve of the election.” Id. at *2-3 (citing Purcell, 549 U.S. 1). Here, with the June election, and the printing and mailing-out of ballots, just weeks away, and with the all-but-certain upcoming appeals of this Court’s decision, any action from this Court granting the requested relief is contrary to the public interest because it would likely result in “voter confusion and consequent incentive” not to vote. Purcell, 549 U.S. at 4-5. Therefore, given the United States Supreme Court’s decisions in Purcell and its progeny, including the recent decision regarding the judicial interference in the Wisconsin Case in the upcoming election and the Seventh Circuit’s reversal of the district court, this Court should not grant the requested relief for the upcoming Texas elections. Plaintiffs’ request for a preliminary injunction should be denied.
CONCLUSION For the foregoing reasons, Amicus Curiae respectfully requests this Court deny the Plaintiffs’ Motion for Preliminary Injunction.

This the 13th day of May, 2020.
Wade Emmert* General Counsel Republican Party of Texas Texas State Bar No. 00793688 Emmert Law Firm, PC 100 Crescent Court, Suite 700

Respectfully submitted,
REPUBLICAN PARTY OF TEXAS
By: /s/ Dallin B. Holt Dallin B. Holt Texas State Bar No. 24099466 Holtzman Vogel Josefiak Torchinsky PLLC 34 N. Hill Dr., Suite 100 Warrenton, VA 20186 Telephone: (540) 341-8808

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Dallas, TX 76013 Telephone: (469) 607-4502 Facsimile: (469) 436-6378 wade@emmertlaw.com *Counsel admitted but currently on inactive status. Readmission fee submitted.

Facsimile: (540) 341-8809 dholt@hvjt.law

ATTORNEYS FOR AMICUS CURIAE

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Exhibit A

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay1t4heoprfe4pr0int in perpetuity.
No Detectable Surge in SARS-CoV-2 Transmission due to the April 7, 2020 Wisconsin Election
Kathy Leung, Ph.D. and Joseph T. Wu, Ph.D., WHO Collaborating Centre for Infectious Disease Epidemiology and Control, School of Public Health, Li Ka Shing Faculty of Medicine, The University of Hong Kong, Hong Kong Special Administration Region, China
Kuang Xu, Ph.D., and Lawrence M. Wein, Ph.D. (corresponding author), Graduate School of Business, Stanford University, Stanford, CA
Abstract: We analyze confirmed cases and new hospitalizations in Wisconsin in the weeks surrounding the April 7, 2020 election, and find no evidence of a surge in SARS-CoV-2 transmission.
The April 7, 2020 Wisconsin election produced a large natural experiment to help understand the transmission risks of the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). Up to 300,000 people voted in person [1-2] and waiting times in Milwaukee averaged 1.5-2 hr [3]. Poll workers had surgical masks and latex gloves, hand sanitizer was made available to voters, isopropyl alcohol wipes were used to clean voting equipment, and painting tape and signs were used to facilitate social distancing [2].
Wisconsin tracks cases confirmed by testing (Fig. 1A) and throughout April 2020 have restricted testing to frontline workers and those hospitalized with serious illness [4]. We used a deconvolution-based method to reconstruct the SARS-CoV-2 epidemic curve by dates of infections rather than dates of reporting by health authorities, and then used two different methods [5]-[6] to estimate the instantaneous reproduction number ", which is the average number of secondary cases generated by one primary case with the time of infection on day , from March 25 (the start of the safer-at-home order) through April 18 (see the Supplementary Appendix).
As seen in Fig. 1B, there is no detectable spike in " on April 7. The number of SARS-CoV-2 tests performed in Wisconsin has been relatively stable throughout April [7] (Fig. 1C), suggesting that reduced testing capacity in the days after April 7, which could have censored some of the April 7 infections, did not occur. Moreover, new SARS-CoV-2 hospitalizations in Wisconsin have steadily declined throughout April (Fig. 1D), from a high of 101 on April 3 to a low of 14 on April 18 [7], suggesting that daily new hospitalizations are much less than testing capacity.
The lengths of the incubation period and the reporting delay imply that April 7 infections would not be reported until April 17 on average, with most cases being reported during April 11-22. Taken together, there is no evidence to date that there was a surge of infections due to the April 7, 2020 election in Wisconsin, which has a relatively low level of SARS-CoV-2 transmission in the US.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay1t5heoprfe4pr0int in perpetuity.
Finally, the Wisconsin Department of Health Services announced on April 22 that 19 people who either voted in person or worked at the polls on April 7 have tested positive for SARSCoV-2, although several of these people also experienced non-voting exposures [8]. This fact is not inconsistent with our population-level analysis, because 19 cases is small relative to the total number of confirmed cases in Wisconsin. To put this information into perspective, if we assume that the SARS-CoV-2 fatality rate among symptomatic patients who were physically capable of voting in person on April 7 (e.g., not including nursing home residents) is 1% (using the fatality rate of known cases for people aged <60 [9]), then we would expect 0.19 deaths out of 300,000 people, which is the fatality risk of driving an automobile approximately 50 miles [10]. However, in addition to the individual risk of voting on April 7, there is the community risk: how many downstream cases will these 19 original cases generate? According to Fig. 1B, the reproduction number in Wisconsin has been hovering near the value of one for all of April. If this value was much larger than one (as it was in, say, January) then these 19 cases would cause a lot of downstream damage, and if this value was clearly smaller than one then they would cause minimal damage. But a value near one, coupled with the small number of cases, means that it is very difficult to reliably predict the amount of downstream damage.
Taken together, it appears that voting in Wisconsin on April 7 was a low-risk activity.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay1t6heoprfe4pr0int in perpetuity.

A

B

C

D

Figure 1. SARS-CoV-2 Dynamics Surrounding the April 7, 2020 Election in Wisconsin. Panel A shows the number of daily confirmed SARS-CoV2 cases in Wisconsin from March 15 to April 19. Panel B shows the estimated instantaneous reproduction number " (along with 95% confidence intervals) each day from March 25 (the start of the safer-at-homeorder in Wisconsin) to April 18 using two different methods. Panel C shows the number of SARS-CoV-2 tests performed each day from March 15 to April 18. Panel D shows the number of new SARS-CoV-2 hospitalizations in Wisconsin on each day from March 30 to April 18. In generating the curve in Panel C, a possible mis-entry in the original data set [4] led to the cumulative test count on March 29 being smaller than the day prior; in response, we replaced the March 29 cumulative case count by the average value between March 28 and 30.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay1t7heoprfe4pr0int in perpetuity.
1. 2020 spring election and presidential preference vote ballot status as of April 17, 2020. Accessed at https://elections.wi.gov/sites/elections.wi.gov/files/202004/Ballot%20Data%20as%20of%20April%2017%202020.pdf
2. Wisconsin Election Commission. Summary of April 7, 2020 election. Accessed at https://elections.wi.gov/sites/elections.wi.gov/files/202004/April%207%20Election%20Summary%20and%20Next%20Steps.pdf
3. Spicuzza M. ‘A very sad situation for voters’: Milwaukeeans brave wait times as long as 2 ½ hours, top election official says. Milwaukee Journal Sentinel, April 7, 2020.
4. Wisconsin Department of Health Services. Coronavirus Disease 2019 (COVID-19) Situation Report. Publication P-02624, March 25, 2020.
5. Wallinga J, Teunis P. Different epidemic curves for severe acute respiratory syndrome
reveal similar impacts of control measures. Am J Epidemiology 2004;160:509-516.
6. Cori A, Ferguson NM, Fraser C, Cauchemez S. A new framework and software to
estimate time-varying reproduction numbers during epidemics. Am J Epidemiol.
2013;178:1505-12.
7. Wisconsin COVID-19 Historical Cases by State Boundary as of April 19. Accessed at https://data.dhsgis.wi.gov/datasets/wisconsin-covid-19-historical-cases-stateboundary
8. Stracqualursi V, Phillip A. 19 coronavirus cases connected to Wisconsin primary election, state health official says. cnn.com, April 22, 2020. Accessed at https://www.cnn.com/2020/04/22/politics/wisconsin-april-7-election-coronaviruscases/index.html
9. Verity R, Dorigatti I, Winskill P et al. Estimates of the severity of coronavirus disease 2019: a model-based analysis. Lancet 2020;395:published online on March 30, 2020.
10. National Safety Board. Injury facts. Accessed on April 22, 2020 at https://injuryfacts.nsc.org/motor-vehicle/historical-fatality-trends/deaths-and-rates/

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay1t8heoprfe4pr0int in perpetuity.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay1t9heoprfe4pr0int in perpetuity.
SUPPLEMENTARY APPENDIX The instantaneous reproductive number " was defined as the average number of secondary cases generated by one primary case with the time of infection on day . If " > 1 the epidemic is expanding at time , whereas " < 1 indicates that the epidemic size is shrinking at time . Since the epidemic curve of Wisconsin is based on the dates of test confirmation, we use a deconvolution-based method to reconstruct the SARS-CoV-2 epidemic curve by dates of infection [1-2]. Let )*+,-.")/* be the probability density function (pdf) of the incubation period, and /*01"2+/*3)45.")/* be the pdf of the time between symptom onset and test confirmation. We assume )*+,-.")/* and /*01"2+/*3)45.")/* are independent such that the pdf of the time between infection and confirmation is
"
)*31+")/*2+/*3)45.")/* () = 9 /*01"2+/*3)45.")/* ( − ))*+,-.")/* ()
=
We use )*31+")/*2+/*3)45.")/* to deconvolute the time series of the daily number of confirmed cases to reconstruct an epidemic curve of daily number of new infections. We assume the incubation period distribution is gamma with mean and SD of 5.2 and 2.3 days [3]. We assume that the distribution of the time between symptom onset and confirmation is gamma with mean and standard deviation (SD) of 4.3 and 3.2 days, based on 186 cases reported in Jan-Feb 2020 in Beijing [4]. With the epidemic curve by dates of infection in hand, we applied two different methods -- developed by Wallinga and Teunis [5] and by Cori et al. [6] -- to estimate " using the R package EpiEstim. We assume the generation time distribution is approximately the same as the serial interval distribution, which was

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevIrt-ri0sev0mie4awd3e)8ias-vtFahielBaabulethDuonrod/feucrnudaemCr,Cew-BnhoYt-hN4aC8s-gNrDaFn4tie.l0deImdntee0drnR5axt/ii1vona3al/li2cliec0nesnesePto.adigspelay2t0heoprfe4pr0int in perpetuity.
inferred to be gamma with mean 5.4 and SD 4.7 days from the dates of symptom onset of 56 infector-infectee pairs from mainland China [4].
1. Goldstein E, Dushoff J, Ma J et al. Reconstructing influenza incidence by deconvolution of daily mortality time series. PNAS 2009;106:21825-29.
2. Wu JT, Ho A, Ma ESK et al. Estimating infection attack rates and severity in real time during an influenza pandemic: analysis of serial cross-sectional serologic surveillance data. PLOS Medicine 2011;8,10:e1001103.
3. Li Q, Guan X, Wu P et al. Early transmission dynamics in Wuhan, China, of novel coronavirus-infected pneumonia. N Engl J Med 2020;382:1199-1207.
4. Leung K, Wu JT, Leung GM. First-wave COVID-19 transmissibility and severity in China outside Hubei after control measures, and second-wave scenario planning: a modelling impact assessment. Lancet 2020;395:published online April 8.
5. Wallinga J, Teunis P. Different epidemic curves for severe acute respiratory syndrome reveal similar impacts of control measures. Am J Epidemiology 2004;160:509-516.
6. Cori A, Ferguson NM, Fraser C, Cauchemez S. A new framework and software to estimate time-varying reproduction numbers during epidemics. Am J Epidemiol. 2013;178:1505-12.

Case 5:20-cv-00438-FB Document 48 Filed 05/13/20 Page 21 of 40
Exhibit B

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t2heoprfe4pr0int in perpetuity.
1
Wisconsin April 2020 Election Not Associated with Increase in COVID-19 Infection Rates
Andrew C. Berry, D.O.1; Madhuri S. Mulekar, Ph.D2; Bruce B. Berry, M.D.3 1 Department of Medicine, Division of Gastroenterology, Larkin Community Hospitals, South Miami, FL, USA## 2 Department of Mathematics and Statistics, University of South Alabama, Mobile, AL, USA 3 Community Physicians, Froedtert & The Medical College of Wisconsin, Milwaukee, WI, USA#
April 23, 2020 Abstract: Background: Wisconsin (WI) held a primary election in the midst of the COVID-19 pandemic. Live voting at polls was allowed despite concern over increasing the spread of COVID-19. In addition to 1.1 million absentee ballots cast, 453,222 persons voted live. The purpose of our study was to determine if an increase in COVID-19 activity was associated with the election.
Methods: Using the voting age population for the United States (US), WI, and its 3 largest counties, and daily new COVID-19 case reports from various COVID-19 web-based dashboards, daily new case rates were calculated. With election day April 7, the incubation period included April 12-21. The new case activity in the rest of the US was compared with the Wisconsin activity during the incubation period.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t3heoprfe4pr0int in perpetuity.
2
Results: WI daily new case rates were lower than those of the rest of the US for the 10-day period before the election and remained lower during the post exposure incubation period. The ratio of Wisconsin new case rates to US new case rates was 0.34 WI: 1 US for the 10 days leading up to the election and declined to 0.28 WI: 1 US for the 10-day post-incubation period after the election. Similar analysis for Milwaukee county showed a pre-election ratio of 1.02 Milwaukee: 1 US and after the election the ratio was 0.63 Milwaukee: 1 US. Dane county had a pre-election ratio of 0.21 Dane: 1 US case, and it fell to 0.13 Dane: 1 US after the election. Waukesha county had a pre-election ratio of 0.27 Waukesha: 1 US case and that fell to 0.19 Waukesha: 1 US after the election.
Conclusions: There was no increase in COVID-19 new case daily rates observed for Wisconsin or its 3 largest counties following the election on April 7, 2020, as compared to the US, during the post-incubation interval period.
#Article Guarantor Contact: Bruce B. Berry, M.D. Community Physicians, Froedtert & The Medical College of Wisconsin, Milwaukee, WI, USA. Email: bbberry2018@gmail.com ##Corresponding Author and Media Contact: Andrew C Berry, D.O. Department of Medicine, Division of Gastroenterology, Larkin Community Hospitals. Email: ABerry5555@gmail.com

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t4heoprfe4pr0int in perpetuity.
3
Introduction: Since the World Health Organization declared SARS-CoV-2 (COVID-19) a global pandemic on March 11, 2020, drastic social distancing measures have been declared across the United States1and in Wisconsin by Governor Evers Safer at Home Order 2. Many businesses and social activities have been closed and minimized, leading to unrest about individual freedoms. The intricate balance between constitutional voting rights and public health took front seat on April 7, 2020, the scheduled primary election date for the state of Wisconsin. The presidential primary election, a key state Supreme Court justice election, and numerous local office elections were on the ballot for April 7.
A U.S. District judge rejected a request to postpone the election, but provided an extension for absentee ballots. Later, the Supreme Court cancelled the extended period for absentee voting,3 and on April 7, the election occurred, a mixture of live and absentee mail in voting. Absentee ballots needed to be postmarked by April 7 to count, causing a change in many voter’s plans.
We aimed to see whether a subsequent rise in COVID-19 cases followed the controversial inperson Wisconsin election on April 7, 2020. Not only may this impact local public health actions, but could impact future election behaviors.
Methods: Websites for new COVID-19 daily cases were visited daily to obtain new case data for the United States (US)4, Wisconsin5, Milwaukee county6, Dane county7, and Waukesha county8. Those counties represented the largest 3 contingents of voter age adults in Wisconsin and were

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t5heoprfe4pr0int in perpetuity.
4
counties where COVID-19 was active during election time. The number of new cases reported by the websites daily were extracted, and the daily new case rates per 100,000 voting age (age 18 or older) adults were calculated in those populations. Census data9 was used to obtain population data and age mix, then the number of voter age adults were calculated for the cohorts. The number of Wisconsin (WI) voters was subtracted from the US total, so the US data would represent all of the country excluding WI data. Daily new cases of COVID-19 infections extracted from the websites were then divided by the number of voter age adults in the cohorts to determine the daily new case rates. COVID-19 daily cases numbers from WI were removed to determine the number of new daily cases for US. The daily new COVID-19 cases were not adjusted for age (<3% under age 19)5. The study was exempt from IRB, it did not include protective health information and used data in the public domain exclusively.
The median incubation period of the virus is 5 days10. With the election on April 7, we used April 12 as the first date to start monitoring the number of new COVID-19 cases that may be related to the election. We then continued the analysis for the full 14-day period following exposure, mimicking a self-quarantine period, as <1% are shown to develop symptoms after 14 days10. Analysis of data from April 12-21 best represents the viral properties and course of action by the individual, from symptoms to testing to receiving results to being reported by the local health department.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t6heoprfe4pr0int in perpetuity.
5
Results: Wisconsin’s April 7, 2020 election was completed and allowed live in-person voting, with subsequent voting characteristics listed in Table 1, for the three largest voting counties, state of Wisconsin, and US, which show considerably large number of live in-person voters.
Figure 1 displays the daily rate of new cases of COVID-19 by day of the pandemic, for Wisconsin and the rest of the US, with curves visually mimicking each other. Figure 1 displays election day occurring on day 28 (highlighted), and the incubation period occurred during days 33-42, five days post-election. Figure 2 provides a focused comparison between Wisconsin and the US for the 5-14 days post-election period. It does not suggest any spike in post-election cases in Wisconsin in relation to the rest of the US.
The average rate of new cases of COVID-19 was 10.77 per 100,000 voting age adults (all rates are per 100,000 voting age adults) in the US for the 10 days leading up to the election on April 7, 2020, and 11.62 for the 10-day incubation period following the election (April 12-21) (Table 2, Supplement A-B). Using the same time period, the average daily rate of new COVID-19 cases for Wisconsin was 3.65 before the election, and 3.23 for the 10-day incubation period following the election.
The US and WI rates themselves, are of course different as the circumstances in the US are different than those in Wisconsin as it pertains to the course of pandemic, population mix, population densities, and many other factors. So, a ratio was determined to see if the correlation between the US and Wisconsin was consistent. Prior to the election, the Wisconsin daily rate of

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t7heoprfe4pr0int in perpetuity.
6
new COVID-19 cases compared to that for the US rate was in a ratio of 0.34 WI:1 US (Table 2, Supplement A-B). The average daily new case rate after the election was 11.62 in the US compared to 3.23 in Wisconsin, with a ratio of 0.28 WI:1 US (Table 2, Supplement A-B). After the election the ratio of new daily case activity in Wisconsin compared to the rest of the US dropped from its pre-election level, suggesting the rate of development of new cases was decreasing following the election compared to what would have been expected if the relationship between Wisconsin and the rest of the US had continued at its pre-election ratio.
The daily rate of new cases of COVID-19 by day of the pandemic for each of the three Wisconsin counties with the most voting age residents—Milwaukee, Dane, and Waukesha—are shown in Figure 3, Figure 4, and Figure 5, respectively. The figures do not suggest any significant spike in cases in any one of these three counties as compared to the US during that time. Milwaukee county’s average rate of daily new COVID-19 cases (10.97 ) was nearly the same as the US (10.77), but higher than the Wisconsin rate of 3.65 for the 10 days prior to the election (Table 2, Supplement A-B). Following the election, the Milwaukee county rate dropped to 7.28, while the US rate increased to 11.62. Prior to the election the ratio between Milwaukee county and the US was 1.02 Milwaukee: 1 US. After the election the ratio went down to 0.63 Milwaukee: 1 US, which is consistent with a drop in rate of new cases in Milwaukee county beyond what would have been expected should the relationship between Milwaukee county data and the rest of the US had continued at the pre-election ratios.
A reduction in post-election new case rates was found for Dane county as well. Dane county started with an average new case daily rate of 3.68 which was lower than the US average (10.77)

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t8heoprfe4pr0int in perpetuity.
7
and it further dropped to 1.54 following the election. The ratio of new cases between Dane and the US was 0.21 Dane: 1 US before the election and 0.13 Dane: 1 US after the election (Table 2, Supplement A-B). Similarly, Waukesha county started with an average new daily case rate of 2.92 prior to the election and it dropped to 2.16 after the election. The ratio of new case rates between Waukesha county and the rest of the US was 0.27 Waukesha: 1 US prior to the election and 0.19 Waukesha: 1 US after the election (Table 2, Supplement A-B). Both Dane and Waukesha counties showed a drop in new cases rates beyond what would have been expected should the relationship between the counties’ new case rates and the rest of the US had continued at the pre-election ratios.
Discussion Our study did not find any significant increase in the rate of new COVID-19 cases following the April 7, 2020 election post-incubation period, for the state of Wisconsin or its three major voting counties, as compared to the US. Ethically, it is not possible to design a randomized study to investigate associations between an in-person voting event and the development of new COVID19 symptoms. The next best option would be to study two groups of people, matched for all the known risks factors for contracting COVID-19 such as age, gender, race, diabetes, hypertension, occupation, sick contacts, etc—but this remains an arduous task that is impractical. Our study compared the rate of new COVID-19 cases following the Wisconsin election to the rest of the US. Thus, we took a practical approach and observed that the COVID-19 activity in Wisconsin seemed to parallel the activity in the rest of the United States (Figure 1, Figure 2). Prior studies have shown that most people who are going to show symptoms do so between 5-14 days following an exposure9. Thus, a 10-day period before the election was used to establish a ratio

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay2t9heoprfe4pr0int in perpetuity.
8
reflecting the relationship between Wisconsin and US rates and then was compared with the ratio observed during the 10-day incubation period following the potential COVID-19 exposure during the in-person election. A reduction in daily new case rates in Wisconsin was observed compared to what would have been expected if the rates in Wisconsin had followed the preelection ratios. Our initial hypothesis of an increase in COVID-19 activity following the live election was not supported. There is no scientific reason why the election would cause a reduction in COVID-19 cases and there is nothing about voting that seems protective against COVID-19. The explanation may lie in characteristics and behaviors of those involved.
The concern that live voting in Wisconsin would cause a large spike in COVID-19 cases caused considerable turmoil in the days prior to election and an increase in absentee voting, that may have been a large factor in preventing an increase in COVID-19 activity. There were 1,551,711 absentee ballots cast, but there were 453,222 ballots11 cast by voters who went to polls to vote and many stood in line for hours. With the heightened publicity around COVID-19 and the perceived risks associated with voting live, high-risk individuals may have self-selected themselves out of the live voting process. Protective measures at the polls may also have mitigated some of the risk associated with the increased social exposure. Maybe the characteristics of the live voters were more favorable to producing asymptomatic infections and many went undetected. A mixture of all those things likely contributed to the absence of an increase in daily new case daily rates following the election. In the three most populous Wisconsin counties, where 109,052 live ballots were cast, no significant increase in daily rates compared to the rest of the US (Figures 3-5) was observed. Similar to Wisconsin as a whole, those counties’ daily new case rates fell faster compared to the rest of the US as well.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t0heoprfe4pr0int in perpetuity.
9
Individual cases of COVID-19 infections most likely occurred as a result of additional exposure from live voting. Contact tracing is very difficult at this time with potential for exposure virtually everywhere in the community, linking an individual to live voting as their sole risk is not possible. Although a designed experiment is not possible to answer the questions raised, the next best option would be a retrospective study where two groups of people are matched for all the known risks factors for contracting COVID-19 such as age, gender, race, diabetes, hypertension and many others. In a future retrospective study, one could extract characteristics about those people who voted live and those voted absentee, and then compare the new COVID-19 case rates for those with comparable characteristics. Even if the two groups could be matched for many of the known risk factors associated with developing COVID-19, it will still not be easy to control for their other exposures, activities of daily living, other household members, and the risk factors and behaviors of other household members.
Conclusions: No evidence was found to support an increase in COVID-19 new daily case rates for the state of Wisconsin, nor its major voting counties, compared to the rest of the US following live voting on April 7,2020. We must continue to utilize our knowledge about COVID-19 and social distancing measures to create the safest and most effective voting environment for all.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t1heoprfe4pr0int in perpetuity.
10
Funding
No funding by any organization or political member for this project or to any member of the research team.
Contributions
ACB and BBB both conceptualized and designed the study. MSM conducted data analysis. ACB, BBB, MSM designed, prepared, and finalized the manuscript. BBB is the article guarantor.
Competing Interest
ACB, BBB, MSM have nothing to declare.
References 1. WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020. https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020. 11 March 2020. Accessed March 20, 2020. 2. State of Wisconsin Department of Health Services. Emergency Order #12 Safer at Home Order. March 12,2020 3. URGENT -- Wisconsin Supreme Court Orders Election Day to Continue and U.S. Supreme Court Alters Ballot Receipt Deadline; Tallying and Reporting Results Still Prohibited Until April 13 - COVID-19. https://elections.wi.gov/node/6824. Accessed April 20 2020.

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t2heoprfe4pr0int in perpetuity.
11
4. University of Virginia COVID19 Dashboard. Accessed at https://nssac.bii.virginia.edu/covid-19/dashboard. Last accessed April 22,2020
5. Wisconsin Department of Health Services. COVID-19. Available at https://www.dhs.wisconsin.gov/covid-19/index.htm. Accessed April 22,2020.
6. Milwaukee County COVID-19 Dashboard. Available at https://www.arcgis.com/apps/opsdashboard/index.html Accessed April 22.2020.
7. Public Health Madison and Dane county. COVID-19 Dashboard. Available at www.cityomadisonmaps.arcgis.com Accessed April 22,2020.
8. Waukesha county Public Health. COVID-19 Dashboard. Available at www.waukeshacounty.maps.arcgis.com Accessed April 22, 2020.
9. Census.gov 2019. Available at www.census.gov. Accessed April 22,2020. 10. Lauer SA, Grantz KH, Bi Q, et al. The Incubation Period of Coronavirus Disease 2019
(COVID-19) From Publicly Reported Confirmed Cases: Estimation and Application. Ann Intern Med. 2020; [Epub ahead of print 10 March 2020]. 11. Wisconsin Elections Commission. Spring election and presidential preference primary April 7, 2020. Available at www.elections.wi.gov. Accessed April 19, 2020

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t3heoprfe4pr0int in perpetuity.
12

Table 1: Election Demographics for Wisconsin, Wisconsin Three Major Counties, and United States (US)

Wisconsin

Population

5,822,434

Voting Age Adults 4,360,176

Ballots Cast Total 1,551,711

Absentee Ballots Cast 1,098,489

Live Votes Cast

453,222

% Absentee Voting 70.8

Milwaukee County Dane County

945,726

456,695

737,666

356,222

210,068

201,613

168,882

155,195

41,186

46,418

80.4

77

Waukesha County US

404,198

328,239,523

315,274

254,713,870

140,068

118,620

21,448

84.7

Table 2: Pre and Post-Election Daily New Case Rates and Ratios Comparing United States (US), Wisconsin, and Wisconsin Three Major Counties

Mean Daily Rate New Cases per 100,000 Voting Age Adults (with Ratios)

US WI WI:US Milwaukee Milwaukee:US Dane Dane:US Waukesha Waukesha:US

PRE-Election 10-Day Period 10.77 3.65 0.34 10.97

1.02

3.68 0.21 2.92

0.27

POST-Election 10-Day Period 11.62 3.23 0.28 7.28

0.63

1.54 0.13 2.16

0.19

(Days 5-14 Post Election)

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t4heoprfe4pr0int in perpetuity.
13
Figure 1:
Highlight: Election Day April 7, 2020

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t5heoprfe4pr0int in perpetuity.
14
Figure 2:

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t6heoprfe4pr0int in perpetuity.
15
Figure 3:

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t7heoprfe4pr0int in perpetuity.
16
Figure 4:

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t8heoprfe4pr0int in perpetuity.
17
Figure 5:

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay3t9heoprfe4pr0int in perpetuity.
18

Supplement Table A: Complete Data of Pre and Post-Election Daily New Case Rates and Ratios Comparing United States (US) and Wisconsin

Date Pre/Post US Daily New US Daily New US Mean Daily WI Daily New WI Mean Daily WI:US Ratio

Election April 7 Cases 29-Mar 30 31 1-Apr 2 3 4 5 6 7
MEAN

Cases Sans WI New Case Rate Cases

18403

18280

21569

21460

25130

25000

26962

26763

28874

28694

32856

32670

33761

33565

25693

25538

30507

30334

31481

31343

27524

10.77

New Case Rate New Case Rate

123

109

130

199

180

186

196

155

173

138

159

3.65

0.34

12-Apr

27834

27706

128

13

26240

26153

87

14

26867

26740

127

15

30059

29893

166

16

32557

32403

154

17

35534

35364

170

18

28615

28461

154

19

30012

29865

147

20

28891

28738

153

21

26388

26267

121

MEAN

29300

29599

11.62

141

3.23

0.28

WI: Wisconsin

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint
(which was noCt acesrteifie5d:2by0p-ceevr-rI0et vi0sie4mw3a)d8ies-taFhveBaialaubthlDeoruo/fnucdneudremar,CewCnh-otBhY4a-8Ns Dgra4Fn.0tielIdentmderen0daRt5iox/ni1vaa3l lil/ci2ceen0nssee.Pto adigspelay4t0heoprfe4pr0int in perpetuity.
19

Supplement Table B: Complete Data of Pre and Post-Election Daily New Case Rates and Ratios Comparing United States (US) and Three Major Wisconsin Counties

Date Pre/Post MKE Daily MKE Mean Daily MKE:US Ratio DANE Daily DANE Mean Daily DANE:US Ratio WAUK Daily WAUK Mean Daily WAUK:US Ratio

Election April 7 New Cases New Case Rate New Case Rate New Cases New Case Rate New Case Rate New Cases New Case Rate New Case Rate

29-Mar

50

11

12

30

72

9

7

31

95

22

7

1-Apr

84

18

13

2

80

6

9

3

93

14

16

4

101

17

6

5

92

11

6

6

42

12

8

7

100

11

8

MEAN

80.9

10.97

1.02

13.1

3.68

0.21

9.2

2.92

0.27

`

12

49

7

9

13

58

3

6

14

67

6

12

15

72

2

10

16

35

2

9

17

86

7

8

18

37

2

6

19

28

4

1

20

50

17

2

21

55

5

5

MEAN

53.7

7.28

0.63

5.5

1.54

0.13

6.8

2.16

0.19

MKE: Milwaukee WAUK: Waukesha

 
 Case 5:20-cv-00438-FB Document 49 Filed 05/14/20 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY;

)

GILBERTO HINOJOSA, Chair of the

)

Texas Democratic Party; JOSEPH

)

DANIEL CASCINO; and SHANDA

)

MARIE SHANSING,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, Governor of Texas;

)

RUTH HUGHS, Texas Secretary of

)

State; DANA DEBEAUVOIR, Travis

)

County Clerk; and JACQUELYN F.

)

CALLANEN, Bexar County Elections

)

Administrator,

)

)

Defendants.

)

5:20-cv-00438-FB

DEFENDANT BEXAR COUNTY ELECTIONS ADMINISTRATOR JACQUE CALLANEN’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Now comes Defendant Bexar County Elections Administrator Jacque Callanen,1 and files

this Response to Plaintiffs’ Motion for Preliminary Injunction (docket no. 9):

PROCEDURAL BACKGROUND

1. On March 20 and April 7, 2020, Plaintiffs initiated parallel state and federal court litigation

regarding the effect of the ongoing COVID-19 pandemic on voter eligibility to vote by mail under

1 Plaintiffs have named Jacque Callanen as a Defendant in this matter in her official capacity as the Elections Administrator of Bexar County. In so doing, any claims they have asserted against her are asserted against Bexar County. Rosas v. Bexar Cty., No. 5:14-CV-1082DAE, 2015 WL 1955406, at *3 (W.D. Tex. Apr. 29, 2015).

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Case 5:20-cv-00438-FB Document 49 Filed 05/14/20 Page 2 of 11
Chapter 82 of the Texas Elections Code during the elections scheduled to occur during the summer and fall of 2020. In the state court litigation—in which Bexar County and Administrator Callanen are not named as defendants—Plaintiffs sought a declaration “that Tex. Elec. Code § 82.002 allows any eligible voter, regardless of age and physical condition, to request, receive and have counted, a mail-in ballot, if they believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Orig. Pet. at ¶ 19, D-1-GN-20-001610 (201st Dist. Ct. Travis County). 2. On April 17, 2020, the 201st Judicial District Court of Travis County, Judge Tim Sulak presiding, entered a Preliminary Injunction Order finding that an absence of COVID-19 immunity is a “physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . . . injuring the voter’s health” within the meaning of Section 82.002 of the Elections Code, and enjoining the State of Texas and Travis County Clerk Dana DeBeauvoir “from issuing guidance or otherwise taking actions that would prevent Counties from accepting and tabulating any mail ballots received from voters who apply to vote by mail based on the disability category of eligibility as a result of the COVID-19 pandemic for all elections affected by the pandemic for the reason that the ballots were submitted based on the disability category[.]” Docket no. 10-4 at 4-5. The State’s appeal of that order is currently pending before the Fourteenth Court of Appeals, and the State of Texas has separately filed a petition in the Texas Supreme Court seeking a writ of mandamus to compel the Elections Administrators in Cameron, Dallas, and El Paso Counties and the County Clerks of Harris and Travis Counties to administer the 2020 elections in accordance with the narrower interpretation of Chapter 82 set forth by the Attorney General in unofficial guidance and in the state court litigation.

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Case 5:20-cv-00438-FB Document 49 Filed 05/14/20 Page 3 of 11

3. In this case, Plaintiffs seek a declaration that, unless voters concerned about contracting COVID-19 are permitted to vote by mail, the elections conditions created by the COVID-19 pandemic would violate Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 and the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments. Docket no. 9 at ¶¶ 79-103. Plaintiffs also allege that Attorney General Ken Paxton—who is not a named party in this litigation—acted in furtherance of a conspiracy to suppress voting, in violation of 42 U.S.C. § 1985, by publishing a letter expressing his office’s opinion that fear of contracting COVID-19 does not qualify a voter to vote by mail and stating that “third parties [who] advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, . . . could [be] subject . . . to criminal sanctions imposed by Election Code section 84.0041.” Docket nos. 9 at ¶¶ 47-49, 104-10; 10-2 at 5-6. Plaintiffs seek an order prohibiting Defendants from “deny[ing] a mail in ballot to any Texas voter that applies for a mail-in ballot because of the risk of transmission of COVID-19” and that prohibits “Defendants, including General Paxton . . . from issuing threats to or seeking criminal prosecution of voters and others advising voters on mail ballot eligibility based on the risk of transmission of COVID-19.” Docket no. 10-5 at 2. 4. The State Defendants oppose this relief, contending principally that the Pullman abstention doctrine applies, docket no. 39 at 16-18; that the Ex Parte Young exception to sovereign immunity does not permit Plaintiffs’ claims against the State Defendants because the State Defendants “do not enforce Texas Election Code Section 82.002 or 82.003[,]” id. at 19-23; and that Plaintiffs cannot show a likelihood of success on the merits, id. at 26-37.
LEGAL STANDARDS 5. A party seeking preliminary injunctive relief under Rule 65 of the Federal Rules of Civil Procedure must establish:

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Case 5:20-cv-00438-FB Document 49 Filed 05/14/20 Page 4 of 11

(1) a substantial likelihood that they will prevail on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) their substantial injury outweighs the threatened harm to the party to be enjoined; and (4) granting the preliminary injunction will not disserve the public interest.
Voting for Am., Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013). A preliminary injunction is an
“extraordinary remedy” that should be reserved for applicants who have “‘clearly carried the
burden of persuasion on all four requirements.’” Steen, 732 F.3d at 386 (quoting Tex. Med.
Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)).
6. In assessing the constitutionality of state election rules that burden voters’ exercise of their
constitutional rights, Courts
must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’
Steen, 732 F.3d at 387-88 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992) and Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983)). “Reasonable, nondiscriminatory restrictions” of voters’
constitutional rights may generally be justified by the state’s “important regulatory interests”; state
rules that severely burden those rights are permissible only if “narrowly drawn to advance a state
interest of compelling importance.” Steen, 732 F.3d at 388 (there is ultimately “no ‘litmus-paper
test’” to relieve Courts from the “hard judgments” necessary to weigh the plaintiffs’ injury against
the state’s interest).
ANALYSIS
7. Defendant Bexar County Elections Administrator Jacque Callanen takes no position
regarding the State Defendant’s arguments regarding abstention and standing, or on the merit of

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Case 5:20-cv-00438-FB Document 49 Filed 05/14/20 Page 5 of 11

Plaintiffs’ claims against the State Defendants. Defendant Callanen files this Response to briefly raise three issues specific to Bexar County.
A. In Administering Elections, Defendant Callanen Complies with the Guidance of the Secretary of State
8. First, the State Defendants contend that the Ex Parte Young exception to sovereign immunity does not apply here because the State Defendants lack authority to enforce the Texas Elections Code. Although the State Defendants now claim to lack authority to make interpretations of the Elections Code that are binding on local elections officials, Defendant Callanen and other local elections officials regard the guidance of the Secretary of State as controlling, and comply with that guidance when carrying out their duties. As the State Defendants acknowledge, the Elections Code itself empowers the Secretary of State to “obtain and maintain uniformity in the application, operation, and interpretation of [the Elections] code and of the election laws[,]” and tasks her with “prepar[ing] detailed and comprehensive written directives and instructions relating to and based on this code and the election laws” to guide elections administrators, county clerks, and other local officials tasked with administering elections. Tex. Elec. Code § 31.003. Attorney General Paxton has previously opined that “[t]he Texas Secretary of State is the entity tasked with administering and applying section 82.002.” Tex. Attn’y Gen. Op. No. KP-009 (2015). 9. At the same time that they disclaim the authority to compel local elections officials to comply with their interpretations of the Elections Code in this case, the State Defendants are also separately pursuing a mandamus action in the Texas Supreme Court to do exactly that: To compel local elections officials in Cameron, Dallas, El Paso, Harris, and Travis Counties to administer the Elections Code as interpreted by the Attorney General. Defendant Callanen is not named as a Respondent in that proceeding, but intends in this election, and in all elections, to carry out her

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duties in accordance with the requirements of the Elections Code as construed in the interpretations and guidance provided by the Secretary of State—including any guidance issued as a result of the Court’s Orders in this case.
B. Plaintiffs Cannot Show They are Likely to Prevail as to Any Claim Against Administrator Callanen—Because They Have Not Asserted Any Claim Against Her
10. Plaintiffs have not identified any manner in which the Bexar County Elections Administrator has burdened their right to vote, nor have Plaintiffs alleged that she or Bexar County have undertaken any act, policy, or practice that infringes upon any federally protected right. Rather, Plaintiffs complain of the interpretation of Chapter 82 of the Elections Code advanced by various state officials, principally Attorney General Ken Paxton. Because Plaintiffs have not asserted any claim against Administrator Callanen, and do not allege that she has burdened their exercise of their right to vote, they cannot show that they are likely to succeed as to any claim against her, and they are therefore not entitled to the “extraordinary remedy” of a preliminary injunction against her. Steen, 732 F.3d at 386. 11. The primary burden on voting during the 2020 election cycle identified by Plaintiffs is the COVID-19 pandemic—an event that was not caused by any action of any state or local official, and whose attendant burdens therefore require no justification by any state interest. Whether the State Defendants have interpreted Chapter 82 of the Elections Code in a manner that unreasonably burdens Plaintiffs’ rights is a separate question. Regardless of the Court’s conclusion regarding this question, state law places the responsibility for that interpretation with the Secretary of State, who is tasked with “obtain[ing] and maintain[ing] uniformity in the application, operation, and interpretation of [the Elections] code and of the election laws[,]” and with “prepar[ing] detailed and comprehensive written directives and instructions relating to and based on this code and the

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Case 5:20-cv-00438-FB Document 49 Filed 05/14/20 Page 7 of 11

election laws” to guide elections administrators, county clerks, and other local officials tasked with administering elections. Tex. Elec. Code § 31.003. The role of elections administrators and county clerks such as Defendant Callanen is not to interpret the provisions of the Elections Code but to administer elections in accordance with interpretations of the Elections Code provided by the Secretary of State. 12. On April 2, 2020, the Secretary of State issued guidance to local elections administrators that advised them to prepare for a higher volume of vote-by-mail applications than usual but did not indicate whether voters would be eligible to vote by mail solely to avoid the risk of coronavirus exposure presented by voting in person. Docket nos. 1-3 at 3; 9 at ¶¶ 26-31. After being named as a Defendant in the related state court litigation, the Secretary of State initially declined to take any position regarding the interpretation of Chapter 82—preferring to leave that interpretation to county and local officials—and was dismissed from the case. Days later, the State of Texas, through the Attorney General’s Office, filed a Petition in Intervention to rejoin the litigation, citing the state’s “strong interest in the efficient administration of its elections and in consistent application of its election laws across its 254 counties.” Docket no. 1-2 at 6. The Attorney General’s Office went on to oppose Plaintiffs’ request for preliminary injunctive relief in the state court case, and to affirmatively assert that fear of contracting COVID-19 is insufficient to qualify a voter to submit their ballot by mail. 13. Lacking clear guidance from the Secretary of State, the Bexar County Commissioners Court requested that the Bexar County Criminal District Attorney’s Office render an opinion regarding the interpretation of Section 82.002 within the context of the COVID-19 pandemic. That opinion, which was presented to the Bexar County Commissioners Court on May 14, concluded— as did Judge Sulak in the state court proceedings—that the absence of immunity against COVID-

Texas Democratic Party et al. v. Greg Abbott et al.

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19 is a “physical condition” within the meaning of Section 82.002, and that this condition presents a likelihood of injuring a voter’s health during in-person voting by placing them at risk of exposure to an ongoing, potentially fatal pandemic against which, unlike other conditions, there is no herd immunity. Exhibit A. 14. However, the ultimate and controlling determination of who is eligible to vote by mail during the COVID-19 pandemic must come from the Secretary of State and the courts, not from local officials. Plaintiffs have not alleged that Bexar County or Administrator Callanen have misinterpreted or misapplied state law or infringed upon any federally protected right. Plaintiffs are therefore not entitled to injunctive relief against Bexar County or any County official.
C. Enjoining Local Elections Officials Is Not Necessary to Provide Effective Statewide Relief
15. Presumably, Elections Administrator Callanen and Travis County Clerk DeBeauvoir have been included as Defendants in this case for the practical purpose of ensuring that they have notice of any relief afforded by this Court so that they may administer elections in their counties in accordance with this Court’s orders. Nevertheless, these practical considerations cannot substitute for the requirement that a party seeking the extraordinary remedy of binding another party to a preliminary injunction must first establish that they are likely to prevail on a legally cognizable claim against the party to be bound. Moreover, it is unnecessary: Under existing state law, Administrator Callanen and other local elections administrators and county clerks administer elections—including processing requests to vote by mail—in accordance with the Secretary of State’s guidance interpreting the Elections Code. Regardless of whether local elections administrators are named as Defendants or are subject to any preliminary injunction that may be entered by this Court, they administer elections on the local level in accordance with the

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interpretations of the Elections Code supplied by the Secretary of State—including any revision or withdrawal of those instructions that may be ordered by this Court. Indeed, the preliminary injunction order entered by the state court in the related case included only a single county-level elections official—Travis County Clerk Dana DeBeauvoir—but nonetheless provided effective relief across local jurisdictions statewide because it enjoined the State “from issuing guidance . . . that would prohibit individuals from submitting mail ballots based on the disability category of eligibility or that would suggest that individuals may be subject to penalty solely for doing so” and required the state to “circulate a copy of this Court’s Order to the Election Official(s) in every Texas County.” Docket no. 10-4 at 6. 16. More fundamentally, focusing any remedy the Court finds appropriate on the manner in which state and local elections officials process applications to vote by mail or mail ballots would be misguided. Local elections officials such as Defendant Callanen evaluate the facial sufficiency of applications to vote by mail—but the application form, which was developed by the Secretary of State, does not permit voters to describe or even identify the basis of their eligibility to vote by mail under Section 82.002 beyond checking a box marked “disability.” The Election Code does not authorize local elections officials to investigate or adjudicate the sufficiency of a voter’s claim of eligibility to vote by mail, but provides that the local elections administrator “shall provide an official ballot to the applicant as provided by this chapter” unless it is facially evident from the application that the voter is not eligible. Tex. Elec. Code § 86.001. Should this Court determine that preliminary injunctive relief is warranted, it may afford that relief on a uniform, statewide basis by enjoining the Secretary of State. Since neither local nor state officials are in a position to detect the basis for any particular application to vote by mail, any such relief presumably would

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be focused on the public guidance that is issued to voters regarding who is eligible to apply, not to
the manner in which local officials process those applications.
CONCLUSION
17. Defendant Bexar County Elections Administrator Jacque Callanen is not the subject of any
claim asserted by Plaintiff or any wrongful act alleged in Plaintiff’s Original or First Amended
Complaint. Entry of preliminary injunctive relief against her—which requires that Plaintiff show
they are likely to prevail on the merits of a claim against her—is therefore not appropriate.
WHEREFORE, PREMISES CONSIDERED, Defendant Bexar County Elections
Administrator Jacque Callanen prays that this Court decline to enter preliminary injunctive relief
against her or Bexar County.
Respectfully Submitted,
JOE GONZALES Bexar County Criminal District Attorney
By: /s/ Robert Green ROBERT D. GREEN Bar No. 24087626 Assistant District Attorney, Civil Division 101 W. Nueva, 7th Floor San Antonio, Texas 78205 Phone: (210) 335-2146 Fax: (210) 335-2773 robert.green@bexar.org Attorney for Defendant Bexar County Elections Administrator Jacque Callanen

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CERTIFICATE OF SERVICE I do hereby certify on the 14th day of May, 2020, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which provided electronic service upon all parties.
/s/ Robert Green ROBERT D. GREEN

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Case 5:20-cv-00438-FB Document 49-1 Filed 05/14/20 Page 1 of 6
JOE D. GONZALES
BEXAR COUNTY CRlM IN AL DISTRICT ATTORNEY PAUL ELIZONDO TOWER 101 W. NUEVA SAN ANTON IO, TEXAS 78205
May 12,2020
To: The Hon. Nelson W. Wolff; Hon. Sergio "Chico" Rodriguez; Hon. Kevin A. Wolff; Hon. Tommy Calvert; and Hon. Justin Rodriguez
From: Joe D. Gonzales, Bexar County Criminal District Attorney
RE: Interpretation of the Definition of a Disability for Purposes of Section 82.002 of the Texas Election Code.
You have requested an opinion regarding the eligibility of Bexar County voters to vote by mail under the disability provision contained in Section 82 .002 of the Texas Election Code during the ongoing COVID-19 pandemic. Your question contains two significant components which will each be addressed in turn: First, the scope of the definition of "disability" contained in Section 82.002 of the Texas Election Code; and second, whether and to what extent various COVID-19related physical conditions, including the physical condition of lacking COVID-19 immunity, might qualify as a disability for purposes of Section 82.002 in light of recent guidance from the Texas Attorney General. 1
I. Background
A. State Court Litigation In March, the Texas Democratic Party and several party officials and individual voters filed suit in Travis County.2 In that action, plaintiffs sued the Secretary of State and the County Clerk
1 This opini on should not be construed as advice regarding whether or not any particular individual has a qualifying disability for purposes of Section 82.002 of the Texas Elections Code or whether they should in fact submit an appli cation to vote by mail. 2 The same group of Plaintiffs have also filed a separate lawsuit in the United States District Court for the Western District ofTexas, San Antonio Di vision, in which they have named Governor Abbott, Secretary of State Hughs, Travis County Clerk DeBeauvoir, and Bexar County Elections Administrator Jacque Callanen as Defendants. A hearing on Plaintiffs' request for a temporary injunction is set for May 15, 2020. Another group of Plaintiffs have filed a second federal lawsuit contending that Chapter 82 violates the Twenty-Sixth Amendment by limiting eligibility to vote by mail only for voters below the age of 65. No Bexar County official or entity is named as a defendant in that case

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of Travis County, seeking a declaration that, under Chapter 82 of the Texas Election Code any eligible voter, regardless of age and physical condition, could request, receive and have counted, a mail-in ballot. Following an evidentiary hearing on April 15, State District Court Judge Tim Sulak issued a preliminary injunction order on April 17. In his order, Judge Sulak found that an absence of COVID-19 immunity is a "physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . . . injuring the voter' s health" within the meaning of Section 82.002. Judge Sulak then enjoined the State ofTexas and Travis County Clerk Dana DeBeauvoir from issuing guidance or otherwise taking actions that would prevent Counties from accepting and tabulating any mail ballots received from voters who apply to vote by mail based on the disability category ofeligibility as a result of the COVID-19 pandemic. The Attorney General's Office, representing the State of Texas, opposed Plaintiffs' preliminary injunction request, and hours after the written injunction was issued, filed its Notice of Appeal.
B. Attorney General Guidance and Threat of Criminal Prosecution
The Honorable Stephanie Klick, Chair of the Committee on Elections for the Texas House of Representatives requested guidance from the Attorney General on the interpretation of Section 82.002 of the Texas Election Code. Responding to her request, the Attorney General's Office provided an "informal letter of legal advice offered for the purpose of general guidance" finding that "fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail." On May 1, the Attorney General issued additional guidance in a letter to County Judges and local elections officials. The letter instructed that "public officials shall not advise voters who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19" and stated that "third parties [who] advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, including fear of contracting COVID-19 without an accompanying qualifying disability" may be subject to criminal penalties under Sections 84.0041 and 276.0 13 ofthe Election Code.
II. Relevant Law
The Election Code provides that qualified voters are eligible to vote by mail if they are 65 years of age or older; are confined to a jail but do not have a felony conviction; if they anticipate being absent from their County of residence on election day; or, pertinent to this analysis, if they meet the requirements of Section 82.002, captioned "disability." Section 82.002 provides that:
A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.
TEX. ELEC. CODE § 82.002.
Importantly, the Election Code provides that the Secretary of State-not the Attorney General, County Commissioners, or the County Judge-is responsible for "obtain[ing] and

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maintain[ing] uniformity in the application, operation, and interpretation of [the Elections] code and of the election laws[,]" and for "prepar[ing] detailed and comprehensive written directives and instructions relating to and based on this code and the election laws" to guide elections administrators, county clerks, and other local officials tasked with administering elections. TEX. ELEC. CODE§ 31.003. Attorney General Paxton has noted in a previous formal AG opinion that "[t]he Texas Secretary of State is the entity tasked with administering and applying section 82.002." Tex. Attn'y Gen. Op. No. KP-009 (2015). To date, the Secretary of State has not publicly issued guidance regarding the interpretation of Section 82.002 within the context of the COVID19 pandemic but has left the matter to the determination of local officials in consultation with local legal counsel.
As of the date of this opinion, the Attorney General has issued guidance addressing only the narrow question of whether the mental state of being fearful of contracting COVID-19 alone is a qualifying disability under Section 82.002. In that guidance, the Attorney General determined that it is not. However, present Attorney General guidance does not preclude nor does it address whether and to what extent other conditions which increase the risk of contracting COVID-19 may qualify as a disability for purposes of Section 82.002, including the physical condition of lacking COVID-19 immunity.
III. Analysis
Section 82.002 does not provide a definition for several of the terms used to describe those who might be eligible to vote by mail based on a disability, including the words "sickness," "physical," or "condition." The Texas Supreme Court has instructed that when interpreting a statute, we should look to the plain language and should construe the text in light of the statute as a whole. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 , 59 (Tex. 2019). The plain language of a statute is the most reliable guide to legislative intent. !d. (internal citation omitted). Statutory terms should bear their common, ordinary meaning, unless the text provides a different meaning or the common meaning leads to an absurd result. !d. (citation omitted). In the guidance issued this year and in a prior formal opinion regarding Chapter 82, the Attorney General relied on dictionary definitions to determine the common meaning of those undefined terms. Attorney General Paxton has noted in a previous opinion that "[t]he plain language of section 82.002 does not require that a person satisfy any specific definition or standard of "disability" outside of the Election Code in order to qualify to vote by mail." Tex. Attn 'y Gen. Op. No. KP-009 (2015).
Considering the common meaning of the term "condition," the Attorney General's informal analyses relied on a single dictionary definition to determine that "condition" should be construed to mean "an illness or medical problem." The Attorney General 's analyses did not consider any other dictionary definitions of the term "condition," and instead focused its analysis on the distinction between the mental condition of fearing COVID-19 exposure and the requirement that a qualifying condition under Section 82.002 be "physical" in nature. Other common dictionary definitions of the term "condition" include "a state of being[,]" Merriam Webster Online Dictionary, available at https://www.merriam-webster.com/dictionary/condition; "[t]he particular mode or state of being of a person or thing[,]" " [s]tate of health[,]" or "[t]he current circumstances[,]" The American Heritage Dictionary of the English Language, 277 (New Coll. Ed. 1981 ); "a particular mode of being of a person or thing; existing state; situation with

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Page4
respect to circumstances" or "state of health[,]" Dictionary.com, available at https://www.dictionary.com/browse/condition?s=t; or "[a] state of being; an essential quality or status[,]" Black's Law Dictionary (11th ed. 2019). Based on these definitions, we determine that the common meaning of the term "condition" is not limited to an ailment or problem, but includes the state ofbeing of an individual's body.
As a straightforward matter of statutory interpretation, a court is likely to conclude that the definition of "disability" contained in Section 82.002 is broad enough to include any number of qualifying disabilities, including one we consider here-the absence of immunity against a particular known pathogen.3 In pertinent part, Chapter 82 provides that a qualified voter "is eligible for early voting by mail if the voter has a ... physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . .. injuring the voter's health." To address the precise question raised, the absence of immunity against COVID-19 is itself a "condition"-i.e. a ' state of health or being' or an 'essential quality'-that relates to a voter's physical body. Absent that immunity, in-person voting, which would likely require the voter to stand in line with other voters, interact with multiple elections workers who have interacted with numerous other voters, and use a shared touchscreen to cast a ballot, presents a reasonable likelihood of exposing the voter to the extremely aggressive COVID-19 virus-exposure that unquestionably could injure the voter's health and can even prove fatal in some cases.4 As a result, such a voter would therefore be eligible to vote by mail under Section 82.002 ofthe Texas Election Code.
Ultimately, however, it is the voter who must decide whether they believe they are eligible to vote by mail. The form that voters use to apply to vote by mail and request that a ballot be sent to them-a form that was developed by the Secretary of State-does not require voters to describe or even identify the basis of their eligibility to vote by mail under Section 82.002 beyond checking a box marked "disability." The Election Code does not authorize local elections officials to investigate or adjudicate the sufficiency of a voter's claim of eligibility to vote by mail, but provides that the local elections administrator "shall provide an official ballot to the applicant as provided by this chapter" unless it is facially evident from the application that the voter is not eligible. TEX. ELEC. CODE§ 86.001.
IV. Criminal Prosecution
Notably, Attorney General Paxton has suggested that he may prosecute voters who apply to vote by mail solely on the basis of the COVID-19 pandemic, or third parties who advise them
3 Current guidance from the Centers for Disease Control and Prevention (CDC) cautions that older adults and people of any age who have serious underlying medical conditions might be at an even higher risk for severe illness as a result of COVID-19. According to the CDC, at-risk conditions might include those with chronic lung disease or moderate to severe asthma, serious heart conditions, immunocompromised individuals (including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications), severe obesity (body mass index [BMI] of 40 or higher), diabetes, chronic kidney di sease undergoing dialysi s, and those with liver disease: https://www. cdc.govIcoronavi rus/20 I9-ncov/need-extra-precautions/peopIe-at-higher-risk. html 4 As of May 7, 2020, the United States has had approximately I,219,066 confirmed cases of COVID-19 with 73 ,297 deaths reported according the Centers for Disease Control and Preve ntion: https://www.cdc.gov/covid-datatracker/ index .html

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to do so. Section 84.0041 of the Election Code provides that a person commits a state jail felony if they "knowingly provide[] false information on an application for ballot by mail" or "intentionally cause[] false information to be provided on an application for ballot by mail[.]" Section 276.013 provides that a person commits an offense-generally a class A misdemeanorif they "knowingly or intentionally make[] any effort to" "cause a voter to become registered, a ballot to be obtained, or a vote to be cast under false pretenses" or "cause any intentionally misleading statement, representation, or information to be provided ... on an application for ballot by mail[.]"
There is little case law interpreting Sections 84.0041 or 276.013. Section 84.0041 was substantially amended by 2017 legislation, and Section 276.013 was added in its entirety by the same Act. However, both statutes appear to target individuals who attempt to commit election fraud by making false statements of fact on vote-by-mail applications, rather than voters who apply to vote by mail based on a good faith belief that they are eligible to do so. Additionally, the Penal Code establishes an affirmative defense against criminal liability where the person "reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon ... a written interpretation of the law contained in an opinion of a court of record[ .]" Tex. Pen. Code§ 8.03(b)(2). To date, only one court has interpreted Section 82.002 within the context of the COVID-19 pandemic-and it rejected the OAG's narrow interpretation of vote-by-mail eligibility, though the application of that opinion is widely debated. Finally, any prosecution of public officials based on their public statements about eligibility to vote by mail within the context of the COVID-19 pandemic could have First Amendment implications. See generally Wilson v. Houston Cmty. Call. Sys., 955 F.3d 490, 499 (5th Cir. 2020). Nevertheless, the Attorney General unquestionably wields substantial discretion to pursue a prosecution related to what he believes to be violation of the Election Code's criminal provisions, even though it might ultimately prove meritless or unsuccessful.
V. Summary
After a review of relevant authorities and application of law to the facts, it is the opinion of the Bexar County Criminal District Attorney's Office that a court could conclude that the definition of a "disability'' as set out in Section 82.002 might include any number of physical conditions as a result of the increased risk presented to voters as a result of COVID-19. Further, the lack of COVID-19 immunity itselfmay constitute a physical condition that creates a reasonable likelihood that in-person voting during the ongoing COVID-19 pandemic could injure a voter's health. Such voters would therefore be eligible to vote by mail under Section 82.002 of the Texas Election Code.
Since applications to vote by mail do not require the applicant to identify the basis of their eligibility under Section 82.002, and only requires the voter to state that a qualifying condition exists, this conclusion does not alter the manner in which the Bexar County Elections Administrator should process applications to vote by mail. If an otherwise qualified voter submits an application for a ballot by mail on the basis of a "disability," elections officials should process the request without further inquiry.

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The subject of voter eligibility to vote by mail during the COVID-19 pandemic is currently being litigated in both state and federal court. That litigation will hopefully soon result in guidance for the general public, in the form of court orders, regarding who is eligible to apply to vote by mail. Until then, the issue will remain unresolved and subject to debate.
JOE D. GONZALES CRIMINAL DISTRICT ATTORNEY OF BEXAR COUNTY, TEXAS

 
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic

§

Party, JOSEPH DANIEL CASCINO, SHANDA §

MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

Defendants.

§

Case No. 5-20:cv-00438-FB

PLAINTIFFS’ REPLY IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION

I.

Introduction

In the midst of a global pandemic that has infected more than 1.3 million Americans and

resulted in more than 84,000 deaths, Plaintiffs seek this preliminary injunction to preserve their

basic constitutional rights and those of other Texans. It is not Plaintiffs’ lawsuit that would

“destabilize[]” Texas’s “carefully crafted framework governing the conduct of election” (Response at

1) – it is COVID-19, which poses a risk of death to all those, regardless of age, who come into contact

with it, and Defendants’ inexplicable decision to ignore a valid State court order and place its citizens

health and safety at unnecessary risk.

Defendants assertions that they have been “assiduously monitoring COVID-19 for months,”

and “Texas voters will be able to safely cast an in-person ballot,” Response at 2, are unsupported by

the evidence. May 13, there were 1,473 new reported cases in the State, the second highest daily

1

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toll ever and the highest in more than a month.1 Despite rising rates of infection, Defendants have not explained, nor provided any evidence as to how they will actually keep polling places safe and why they believe the pandemic will not continue through July and into November. Nor have they explained how the state’s laws could be adequately adjusted to this yet unfounded plan given that the state constitution explicitly prohibits the Governor from suspecting Acts of the Legislature.2 Defendants can only state to the Court that sometime soon they will explain how they believe they will be able to safely protect the millions of Texans they intend to force to risk infection to exercise their right to vote. Response at 3. But, the election process is running now and has for weeks and anyway, the voting rights of citizens are not dependent on the hope without a plan benevolence of the state’s executive branch.
Texas has neither explained nor provided any evidence as to how it will stop the COVID-19 pandemic and protect people who are forced not merely to vote at a polling place, but also travel to and from it. It is Defendants, not Plaintiffs, who are engaged in speculation and conjecture when they declare in conclusory fashion that voting in-person in July and November will be safe for all Texans. The evidence, and recent experience, show that it cannot be done.
Moreover, Defendants seek to have it both ways. On the one hand, Defendants contend that they are under siege from Plaintiffs’ supposed “coordinated campaign” of litigation against the Texas Election Code, of which this lawsuit is purportedly the “latest salvo.” Response at 8. On the other, Plaintiffs have engaged in delaying tactics and have not “moved urgently . . . to litigate their claims.” Id. Neither is true. Plaintiffs have vigorously litigated their claims in this Court and others
1 https://www.nytimes.com/interactive/2020/us/texas-coronavirus-cases.html
2 Tex. Const. Art. 1, Sec. 28.
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in order to protect and preserve their constitutional rights and those of other Texans. It is Defendants who have flouted the judicial process.
Plaintiffs moved with great haste to vindicate their right to vote. Only one day after the Texas Commissioner of the Department of State Health Services declared a state of public health disaster and Defendant Abbott closed schools, bars, and restaurants, Plaintiffs filed suit in Texas state court seeking a temporary injunction, permanent injunction, and declaratory judgment holding that Section 82.002 allows any eligible voter, regardless of age and physical condition, to vote by mail they should practice social distancing. Texas Democratic Party, et al. v. DeBeauvoir, et al., No. D-1-GN-20-001610 (201st Dist. Ct., Travis Cnty., Tex. filed March 20, 2020). On April 15, the state court ruled in Plaintiffs’ favor and granted the temporary injunction. Id.
It was Defendant Paxton, not Plaintiffs, who precipitated this lawsuit by releasing a letter which directly contradicted the decision of the Texas state court, described the court’s decision as “unlawful,” and threatened criminal prosecution against third parties who relied on a valid court order. It is Defendants who pursued this incorrect, dangerous, and unconstitutional interpretation of the Texas Election Code in defiance of the valid ruling of a Texas state court. It is Defendants’ disregard for the judicial system and the health and safety of Texans, not Plaintiffs’ efforts to ensure that they will be able to exercise the right to vote, that has spurred this litigation.
As explained in the Motion (see generally, id.), the Court should issue a preliminary injunction in this case. Plaintiffs are likely to succeed on the merits of their claims. Defendants’ conduct violates Plaintiffs’ right to vote under the Twenty-Sixth Amendment and the Equal Protection Clause. Moreover, the statute in question is unconstitutionally vague (particularly given Defendant Paxton’s threat of criminal prosecution for those who chose to abide by the valid state court order),
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Defendants have engaged in voter intimidation in violation of 52 U.S.C. § 10307(b), and Defendants have denied Plaintiffs’ free speech rights in violation of the First Amendment. Plaintiffs are therefore likely to succeed on the merits of their claims, and, as explained below, the other elements for a preliminary injunction to issue are satisfied in this case. Finally, Defendants’ standing, sovereign immunity, and improper defendant arguments all lack merit.
II. Plaintiffs Are Likely to Succeed on the Merits of their Claims A. Plaintiffs Are Likely to Prevail on the Merits of their Twenty-Sixth Amendment Claim
The State’s argument that Texas Election Code § 82.003 does not violate the Twenty-Sixth Amendment is meritless. The Twenty-Sixth Amendment provides that “[t]he right of citizens of the United States, who are eighteen 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. The statute in question does just that, abridging Plaintiffs’ right to vote based on their age.
a. Strict Scrutiny Applies to the 26th Amendment Claims, and Defendants’ Conduct Does Not Satisfy that Standard
As explained in the Motion, strict scrutiny should apply to Plaintiffs’ Twenty-Sixth Amendment Claim. Id. at 15. A three judge federal court in Texas considered a 26th Amendment claim, it surveyed numerous other federal and state supreme court opinions that determined that the state must advance a compelling state interest to enforce a law that granted voters differing benefits based on their age. See Symm v. United States, 439 U.S. 1105 (1979). The decision was summarily affirmed by the Supreme Court. See United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978). “[S]ummary affirmances obviously are of precedential value,” Edelman v. Jordan, 415 U.S. 651, 671 (1974). In the absences of a fully developed Supreme Court opinion, Symm should settle the case at bar for this Court. Strict scrutiny applies.
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Defendants contend that if Anderson-Burdick standard applies to 26th Amendment claims such as the one Plaintiffs bring here, the challenged statute should be evaluated under rational basis review. Response at 20-21. As explained in the Motion, however, the Anderson-Burdick analysis requires strict scrutiny where, as here, the burden on the right in question is severe. Id. at 27 (citing League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1221 (N.D. Fla. 2018) (finding that the Twenty-Sixth Amendment provides an “added protection to that already offered by the Fourteenth Amendment”)). Defendants suggest that the burden on Plaintiffs’ right to vote is not severe in this case because “young people and elderly people alike have the same avenues for inperson voting available to them” (Response at 21). But this is not the case under current circumstances, which have the practical effect of closing off the avenue of in-person to persons practicing social distancing as a result of COVID-19. As such, while those 65 and older are able to vote by mail, young people practicing government requested, if not mandated, social distancing will be denied the right to vote. This burden is severe, and thus even if the Twenty-Sixth Amendment rolls into the Fourteenth and the Anderson-Burdick test applies, the burden must be “narrowly drawn to serve a compelling government interest.” See Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Defendants do not seriously contend in the Response that such narrow tailoring is present in this case. Section 82.003 is prima facie discriminatory towards younger votes as the law on its face creates two classes of voters. In doing so, it abridges and otherwise severely burdens the right to vote for voters under the age of 65.3 Despite Defendants’ assertions to the contrary (Response at 22), the unrebutted evidence demonstrates that many voters under 65 will be denied mail ballots solely due
3 Moreover, as explained in the Motion and unrefuted in the Response, laws that patently discriminate on their face, such as this one, are subject to strict scrutiny. See Lynch v. Donnelly, 465 U.S. 668, 687 n. 13 (1984) (holding that laws, statutes, or practices that are “patently discriminatory on its face” will receive strict scrutiny); see also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015).
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to their age, and will therefore be forced to choose between voting in-person and risking their life or forgoing their right to vote. Section 82.003 unconstitutionally discriminates against younger voters by providing an alternative means for older voters to cast a ballot, but denying younger voters those same alternatives. In other words, it denies younger voters the means to cast a ballot safely during a pandemic, solely on the account of their age, and thus effectively denies their exercise of their fundamental right to vote in these as-applied circumstances. This is impermissible under the TwentySixth Amendment.4
If the Court declines to engage in strict scrutiny, it should employ the Arlington Heights framework and reject the state’s argument to the contrary. See Motion at 16-18. Defendants assert that the Arlington Heights framework is inapplicable, but then concede neither the Supreme Court nor the Fifth Circuit have adopted a standard for review of Twenty-Sixth Amendment claims. Response at 21. The better course is that if this court declines to adopt the Anderson-Burdick analysis, it should follow the well-reasoned decision in One Wis. Inst., Inc. v. Thomsen, 198 F.Supp.3d 896 (W.D. Wis. 2016), which held that because the Twenty-Sixth Amendment's text is "patterned on the Fifteenth Amendment . . . Arlington Heights provides the appropriate framework.” Id. at 926. And, as explained in the Motion (id. at 17-20), the four elements of the Arlington Heights framework5 are satisfied in this case.
b. Alternatively, Defendants’ Conduct Does Not Satisfies Rational Basis Review
4 Even if the Court found that the burden on Plaintiffs was “moderate” and not “severe,” under the AndersonBurdick standard Defendants, for the reasons explained herein, would still not have shown that their asserted interests outweigh the public’s interest in ensuring Texans are able to vote safely. 5 The Arlington Heights framework is well-settled law, evaluating: (1) the impact of the official action and whether it bears more heavily on one group than another; (2) the historical background of the decision; (3) the specific sequences of events leading up to the decision challenged in the case, including departures from normal procedures in making decisions and substantive departure; and (4) contemporary statements made by the governmental body who created the official action. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
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Even if this court were to apply the standard of review advocated (incorrectly) by the Defendants, Defendants’ reasons for barring voters under the age 65 who are practicing social distancing due to COVID-19 concerns do not reflect any legitimate government purpose.
Even under rational basis review, courts “insist on knowing the relation between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620, 632 (1996). This is particularly true where the classification at issue touches upon both the fundamental right to vote and involves a suspect class, as it does here. See supra, Section II.B.
Indeed, “[a] law will not survive rational basis unless it is ‘narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].’” De Leon v. Perry, 975 F. Supp. 2d 632, 652 (W.D. Tex. 2014), aff’d sub nom. De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015) (quoting Romer, 517 U.S. at 620). In De Leon, the court struck down a Texas constitutional provision barring the recognition of an out-of-state same sex marriage in Texas. Id. at *639. Proceeding under a rational review standard, the court determined that while at least some of the state’s asserted governmental interests were undoubtedly legitimate, the state law failed to bear a rational relationship to those governmental ends. Id. at *653. In so finding, the Court noted that an unsupported and “overbroad generalization[s]” that cannot be a basis for upholding discriminatory legislation. Id. at 665.
Similarly, in this case, Defendants’ asserted governmental interest, in preserving the health and well-being of those 65 and over, is undoubtedly legitimate. They assert that their interpretation of the statute survives rational basis review because “[e]ven outside the context of COVID-19, individuals aged 65 and over (as a group) face unique challenges in attending the polls,” and that during the COVID-19 pandemic, “individuals aged 65 and over face a greater risk of developing
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complications from COVID-19 than those under 65.” Response at 23.6 But Defendants’ interpretation of the statute in question and their efforts to enforce that interpretation bear no rational relationship to that end. Forcing millions of Texans (including 64 and 63 year olds) to travel to polling places and violate social distancing protocols to vote in-person, and then travel back to their homes (where many may live with Texans 65 or older) or places of business (where many may work with Texans 65 and older) does nothing to protect the health of that vulnerable population. To the contrary, by enforcing their narrow interpretation of the statute, Defendants will directly undermine the very interest they assert.
Seeking to bolster their argument that conduct is rationally related to a legitimate government interest, Defendants point to the elections that occurred in Wisconsin in April of 2020 as evidence that voters that do not have access to a mail ballot during the pandemic are not burdened. According to Defendants, the elections in Wisconsin “demonstrate[] that elections can be held in-person without an increased risk of transmission of COVID-19.” Response at 27. This assertion is false. More than 50 people who voted in person or worked the polls during that Wisconsin election have tested positive for COVID-19.7 And while the statistical methods of the study the state perches on are suspect, even were the study’s finding scientifically supported, it says nothing about whether voting in-person caused more infections that otherwise would have occurred over the same time. All the paper really can conclude, if it was rigorous, is that in Wisconsin there was not a spike of cases after the election.
6 This argument is not only callous in its disregard of the health of Texans under 65; it also appears to be ungrounded in facts. Data from the State of Texas shows that the highest number of reported cases of COVID-19 are among Texans aged 40-49, 50-59, and 30-39. Those aged 20-29 comprise more than double the reported cases of COVID-19 than those aged 65-69 or 70-74. Motion at 16; see also https://dshs.texas.gov/coronavirus/TexasCOVID19CaseCountData.xlsx. 7 https://www.pbs.org/newshour/health/52-people-who-worked-or-voted-in-wisconsin-election-have-covid-19
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B. Plaintiffs Are Likely to Prevail on their Equal Protection Claims a. Defendants’ Conduct Violates the Equal Protection Clause on the Basis of Age
In their Response, Defendants misstate the standard of review for discrimination on the basis of age in the voting rights context, and in any event misapply the standard they purport to apply in these circumstances. Defendants ignore the well-established principle that the right to vote is a “fundamental right,” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966). Discriminatory classifications that impinge on the fundamental right to vote are subject to heightened scrutiny. See Jones v. DeSantis, 950 F.3d 795, 817 (“where a law draws a suspect classification or burdens fundamental rights, we look beyond the benign glance of rational basis and demand a tighter fit between the classification and the government’s interests.”). In Jones, the Eleventh Circuit held that even where states otherwise have a “green light” to deny access to the ballot to all voters, that does not mean that a state has free rein to discriminate between different classes of voters solely on the basis of wealth. Id. at 822. Similarly, although the state may be free in the abstract to decline to provide absentee ballots to voters, once it chooses to provide such an alternative means of voting, it cannot draw classifications based solely on age. See Id.8
Defendants instead rely on Kimel v. Florida Bd. Of Regents, 528 U.S. 62 (2000), an employment law case that has nothing to do with voting rights (or any other fundamental right) to suggest that rational basis review applies. The cases cited by the court in Kimel as supporting the
8 Defendants’ reliance on McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969), cited in the Response at 22 is misplaced. First, McDonald was decided before the Twenty-Sixth Amendment was ratified, calling into question its persuasiveness with respect to classifications based on age. Indeed, the Court’s holding that the classifications were rational because they were not “drawn on the basis of wealth or race,” id. at 807, confirms that a classification that are specifically prohibited under the Constitution, like those based on age under the 26th Amendment, demand heightened scrutiny. Second, the Plaintiffs in McDonald failed to present evidence that pretrial detainees were effectively prohibited from exercising the right to vote, id. at 810, and the Court later acknowledged that had such evidence been presented, as it is here, the case may have come out the other way. See Goosby v. Osser, 409 U.S. 512, 522 (1973).
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proposition that age discrimination need meet only rational basis review (which included a statute requiring state police officers to retire at age 50, a statute requiring Foreign Service officers to retire at age 60, and a statute that required judges to retire at age 70) only serve to demonstrate Kimel’s inapplicability in this case concerning the fundamental right to vote.
Even under the inapplicable standard Defendants advance, however, they have still failed to establish that they have a rational basis for their (incorrect) interpretation of the statute. Defendants assert that the rational basis, pre-COVID-19, for permitting only voters 65 and over to vote by mail is the “everyday barriers to movement, outings, and activity” that they face to a greater degree than young people. Response at 23. Is it really the state’s position that the Governor recently issued stay at home orders because of “everyday barriers?” The COVID-19 pandemic is not an everyday barrier.
In fact, Defendants’ only argument for why enforcement is rational is that “individuals 65 and over face a greater risk of developing complications from COVID-19 than those under 65.” Response 23. But the state offers no evidence for such and anyway, it has not proven that age 65 voters are at a greater risk than age 64, 55 or 50. The fact is, individuals under 65 still face an unacceptable risk of complications and death from COVID-19. And, as discussed above, denying vote by mail to those that live, work, and otherwise interact with and are likely to therefore expose those 65 and older undermines any assertion that enforcement of the state’s narrow interpretation of the vote by mail statute is rational.
Given that Defendants cannot meet even the rational basis standard, they certainly cannot meet the test set forth in Anderson-Burdick. In Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008), on which Defendants rely, the Court found a voter identification law survived AndersonBurdick scrutiny because “[o]rdinary and widespread burdens, such as those requiring ‘nominal
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effort’ of everyone, are not severe.” Id. at 197; see also Response (quoting Crawford’s “ordinary and widespread burden” language. Quite simply, there is nothing “ordinary” about the burden that voting during the global COVID-19 pandemic would impose, and risking one’s life (and the lives of anyone with whom one lives, particularly those aged 65 and older) is not a “nominal effort.” Moreover, despite Defendants’ assertion, Plaintiffs are not asking this Court to “rewrite state election codes,” Response at 24 (quoting Crawford, 553 U.S. at 197), but rather to enjoin Defendants from imposing on Texas citizens the undue burden of subjecting themselves and their family members to the risk of sickness and death in order to vote during these historic times.
Defendants’ other arguments as to why their enforcement of the statute (as they have interpreted it) survives Anderon-Burdick scrutiny lack merit. They argue in conclusory fashion that a deluge of mail-in ballots would limit their efforts to prevent voter fraud (Response at 25) but provide no evidence to support that contention. The court in Veasey v. Abbot, 830 F.3d 216 (2016) which Defendants themselves cite, warned against invoking “preventing voter fraud as a talisman” against constitutional objections to state statutes concerning voting. Id. at 248 n.39. In addition, Defendants also argue that their interpretation of Section 82.003 places no burden on Plaintiffs’ right to vote, because it merely “provides another avenue to cast a ballot for members of a community more likely to face special challenges voting in person.” Response at 25. But Defendants’ argument is little more than semantics–they have provided voters 65 and over a way to avoid contracting COVID-19 while exercising their fundamental right to vote, and denied that option to similarly situated voters under 65.
b. Defendants’ Conduct Violates the Equal Protections Clause on the Basis of Race
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In their Response, Defendants mischaracterize Plaintiffs’ claim as a “disparate impact” claim. Id. at 28. As explained in Plaintiffs’ Motion, as-applied by Defendants, Texas’s mail-ballot eligibility law serves to create classifications that are discriminatory. Id. at 30. Washington v. Davis, 426 U.S. 229 (1976), which Defendants cite in their Response, is inapposite. Id. at 28. In that case, the Supreme Court found that facially neutral laws do not present an equal protection violation based on disparate impact alone. Washington, 426 U.S. at 242. The Supreme Court went on to note, however, “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” Id. The statute at issue here is not facially neutral – it discriminates specifically on the basis of age. In Texas, the population of those under the age of 65 is disproportionately made of members of racial minorities. Motion at 13. Thus, most mail ballots are provided to Texas’s seniors who are 65 years of age or older, and Texas’ population of voters older than 65 is overwhelmingly Anglo.
C. Plaintiffs Are Likely to Prevail on their Void for Vagueness and Voter Intimidation Claims a. Plaintiffs Are Likely to Prevail on their Void for Vagueness Claim
Notwithstanding Defendants’ assertions in the Response, Plaintiffs are likely to succeed on the claim that Section 82.002(a) is unconstitutionally vague under the 14th Amendment.
As an initial matter, Defendants argue that void-for-vagueness challenges in the civil context are disfavored, and cite Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000), which involved a challenge under the Fair Housing Amendment Act to a local zoning decision. Response at 29 (citing id. at 195). As Defendants note, the court in Groome Resources noted that the “void-for-vagueness doctrine has been primarily employed to strike down criminal laws.” Id. at 217. What Defendants ignore, however, is that they themselves are the ones who have invoked criminal
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liability in this case through Defendant Paxton’s statement. As Judge Sparks in this District has explained, courts in the void-for-vagueness context have “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Inst. for Creation Research Graduate Sch. v. Texas Higher Educ. Coordinating Bd., No. A-09CA-382-SS, 2010 WL 2522529, at *18 (W.D. Tex. June 18, 2010) (noting that the statute in question in that case was “a civil regulation,” that “[n]oncompliance with its standards results not in criminal penalties, but merely in the denial of a certificate of authority to offer a degree,” and “[t]hus, a more lenient standard for vagueness applies to the rule”) (emphasis added). Defendants here should not be able to raise the specter of criminal liability to intimidate Plaintiffs and third parties, and then contend before this Court that the civil nature of the statute means the Court should engage in a less fulsome analysis of the statute’s vagueness.
In addition, Defendants fail to respond to Plaintiffs’ argument in the Motion that when a vague statute infringes upon basic First Amendment freedoms, “a more stringent vagueness test should apply.’” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972); see also Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1320 (11th Cir. 2017) (finding that “government may regulate in the area of First Amendment freedoms only with narrow specificity,” that “the State may not hinge liability on a phrase so ambiguous in nature,” that “it most certainly may not do so when devastating consequences attach to potential violations,” and striking down the state statute in question).
Nor do Defendants even analyze whether the law encourages or authorizes arbitrary enforcement because it is clear from Defendant Paxton’s actions during the state court proceedings and these proceedings that the statute does just that. Defendant Paxton has threatened certain election officials while not addressing others on vote by mail. Due process is violated when a statute
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subjects one to criminal liability and provides no standard of conduct or a standard so indefinite that it provides law enforcement officers freedom to react on nothing more than their own beliefs and preferences. Smith v. Goguen, 415 U.S. 566, 578 (1974). The vagueness of the statute allows Defendant Paxton, as he has stated, to choose to prosecute some voters on nothing more than what his opinions are regarding a disability or injury. There are no guidelines by the State to determine when a voter has a qualifying injury. The law must be specific enough to give reasonable and fair notice in order to warn people to avoid conduct with criminal consequences. Smith, 415 U.S. at 574. In the absence of any such guidelines or specificity, the statute must be void for vagueness.
b. Plaintiffs Are Likely to Prevail on their Voter Intimidation Claim Defendants assert that Plaintiffs’ Motion “drips with disdain” (Response at 30) regarding Defendant Paxton’s decision to release his letter defying the lawful order of a Texas state court and threatening third parties who would seek to exercise their fundamental right to vote under that order. It is Defendants who are acting with disdain in this case, directing that disdain towards the judicial system and Texas voters. Defendants also contend that Defendant Paxton did not act with the intent to deprive anyone of their vote, but instead was simply “explain[ing]” that, in effect, failure to follow his interpretation of the statute “could implicate the Code’s criminal provisions.” Response at 31. It strains credulity, however, to accept that Defendant Paxton’s decision, as the State’s chief law enforcement officer, to invoke criminal liability in a letter, the stated purpose of which was guidance as to whether a voter “may claim a disability entitling the voter to receive a ballot by mail,” was not intended as a threat.
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As explained in the Motion (id. at 26), Plaintiff must prove the following elements for a claim under § 1985(3): (1) a conspiracy of two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or deprives her of a right or privilege of a United States citizen. See Hilliard v. Ferguson, 30 F.3d 649, 652– 53 (5th Cir. 1994); Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987). Plaintiffs have satisfied all of these elements.
Defendant Paxton worked with employees and other signatures to issue an advisory opinion for the purpose of depriving persons and classes of voters the right to vote. Statements made by Defendant Paxton include: “to the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041” and that expanding mail ballot eligibility to all Texans “will only serve to undermine the security and integrity of our elections.” These statements operate to confuse and discourage voters from seeking mail ballots under the Texas state court order due to prosecution. Indeed, Defendant Paxton has openly attempted to prosecute voters in a plethora of cases before this court unjustly. It goes without saying that using his position as Attorney General to openly threaten voters with possible prosecution is an act in furtherance of this conspiracy to deprive access to the franchise from legal, rightful voters. Plaintiffs are likely to succeed on the merits of their claim that Defendant Paxton’s official actions amount to voter intimidation in violation of Title 42 USC § 1985(3).
Second, defendants assert that Defendant Paxton's individual right to free speech would be violated if he were enjoined from threatening voters with prosecution for attempting to vote by mail.
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Response at 33. However, when “speech is brigaded with action . . . [t]hey are indeed inseparable.” Brandenburg v. Ohio, 395 U.S. 444, 456 (1969). Here, Defendant Paxton’s overt act is his intimidation of voters. Voter intimidation, encompassing anyone who “intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose,” is prohibited by the Voting Rights Act. 18 U.S.C. § 594. In the Fifth Circuit, elected officials’ speech is “analogous to that afforded citizens in general,” Rangra v. Brown, 566 F.3d 515, 517 (5th Cir. 2009), and there is no private citizen or elected official exemption for voter intimidation. See 18 U.S.C. § 594.
D. Plaintiffs Are Likely to Prevail on their First Amendment Claims Defendants suggest that Plaintiffs’ free speech rights are not violated, because they are free to continue to advocate that voters to apply for and cast absentee ballots under the state court’s order—activity Defendants argue is illegal—despite Defendants’ threats that they will be prosecuted for doing so. Indeed, there would be no reason for Defendants’ speech if it was not intended to have just such an effect. And, the case Defendants rely on for the proposition that Plaintiffs’ right to free speech is not abridged by these threats is inapposite. "[T]here remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.” See United States v. Williams, 553 U.S. 285, 298-99 (2008). In Williams, the case defendants cite, the Court held that mere “abstract advocacy” of illegal activity, as opposed to “offers to provide or requests to” engage in illegal activity, “falls well within constitutional bounds.” Id. at 299. In addition, the imminence requirement for criminal speech to fall outside First Amendment protection is wellsettled; “mere advocacy” or “assembly with others merely to advocate the described type of action” is wholly protected by the First Amendment. Brandenburg, 395 U.S. at 449.
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III. The Public Interest in this Case Is Best Served by Protecting the Rights of the Public rather than the Opinions of State Actors
The public interest in this case would best be served by protecting the constitutional rights of Texas voters, rather than the policy whims of one State executive branch official. An “injunction[] protecting First Amendment freedoms,” such as the one sought by Plaintiffs, is “always in the public interest.” Texans for Free Enter. v. Texas Ethics Comm'n, 732 F.3d 535, 539 (5th Cir. 2013); see also Valley v. Rapides Parish School Bd., 118 F.3d 1047, 1056 (5th Cir. 1997) (affirming the district court’s finding that “the public interest would be undermined if the unconstitutional actions of the [defendant] were allowed to stand” and that “the public interest is enhanced” where an injunction requires “comport[ment] with basic protections of due process to which all citizens are entitled”).
The cases Defendants rely on in their Response are not to the contrary. In Maryland v. King, 567 U.S. 1301 (2012), the irreparable harm that would have resulted from an injunction preventing the state from collecting DNA samples from individuals charged with (but not convicted of) certain crimes would have been the deprivation of “a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population.” Id. at 1301. The Court went on to that “[c]rimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries,” and an injunction should not issue because failing to “prevent these injuries constitutes irreparable harm.” Id. (emphasis added). Thus, the Supreme Court’s decision makes clear that it is public health and safety, not blind enforcement of edicts from state executive branch actors, that represents the public interest. In Abbott v. Perez, 138 S. Ct. 2305 (2018), in which the plaintiffs challenged the state’s redistricting decisions, the Supreme Court noted that State “needed usable plans for its rapidly approaching primaries” and characterized the injunction sought by the plaintiffs as “for all intents and purposes . . . barring the State from conducting this year's
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elections pursuant to a statute enacted by the Legislature.” Id. at 2323. By contrast, in this case, Plaintiffs do not seek to enjoin the State from conducting their election or to invalidate its vote-bymail regime, but instead to prevent the state from unconstitutionally denying Texas voters access to either. And in Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013), the substantial interests at issue was not simply enforcement of the law, but rather “regulating the medical profession,” and noted that the regulations in question were “designed to foster the health” of Texas women. Id. at 411.
If the public interest at issue is, as Defendants suggest, citizens’ “confidence in the evenhanded application of the State’s election laws in these precarious times” (Response at 36) and Defendants oppose allowing everyone at risk of COVID-19 infection (rather than only those 65 and over) to vote by mail, then granting Plaintiffs’ injunction would further that public interest.
IV. An Injunction Should Issue Now, at this Point in the Election Cycle, before the Defendants Cause Any Further Irreparable Harm
The Court should issue an injunction now, with more than two months before the run-off election and five months before the general election, before Defendants’ conduct can cause any further irreparable harm. Ironically, it is Defendants who argue both that there is sufficient time for the State to come up with remedial measures to allow voters to safely vote (Response at 2-3 (arguing that voters “will be able to safely case an in-person ballot,” despite admitting that the Defendant Hughs has yet to provide guidelines which will help achieve such a safe election)), and that it is “too late” for a federal court to issue an injunction protecting Texas voters (Response at 35). Yesterday, in a filing to the Texas Supreme Court, the state argued that the current circumstances were urgent. The fact is that counties throughout the state have been following the state court injunction order for weeks, it is the state who now wishes to upset the election process.
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Defendants suggest that the injunction Plaintiffs seek “threaten[s] to create chaos and uncertainty” in Texas’s election system as mail-in ballot applications are being returned, and Defendants argue that they are interested in preserving the “uniformity” of elections during the COVID-19 crisis. Response at 3, 5. But it is the currently existing chaos, caused by Defendant Paxton avoidance of the orders of the state judiciary, that prompted Plaintiffs to seek this injunction. If Defendants complaint is one of a lack of certainty, then the Plaintiffs’ proposed injunction provides the remedy.
Moreover, Defendants cannot complain now that there is no sufficient time for this Court to issue an injunction, given that it is Defendants themselves who have ignored a Texas state court’s ruling requiring the very same relief. To allow Defendants to manufacture a basis to deny an injunction based on temporal impossibility would undermine the authority of both the Texas state court which has already enjoined the Defendants and this Court.
The cases Defendants cite are not to the contrary and, in fact, support Plaintiffs. In Republican Nat'l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205 (2020), the Supreme Court issued its ruling on the day before the election. Id. at 1207. In any event, it is the State in this case who is trying to upset the election process that has been followed in counties around the state since Judge Sulak’s order. Plaintiffs filed this case the day after the Republican Nat'l Comm. opinion was issued, but just a few days later, Plaintiffs obtained relief under state law in state court. When Defendant Paxton attempted to upset this state court order and sent a memo threatening election officials, voters and political advocacy groups, Plaintiffs here immediately moved for Preliminary Injunction. To follow its arguments to conclusion, Defendants would never find an appropriate time when Plaintiffs could
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vindicate their federal right; which, of course is the point. The State executive officials hope to govern unencumbered by any orders of the state or federal judiciary.
V. Plaintiffs’ Proposed Injunction Is Tailored to the Specific Harm, and the Reason for its Breadth (if Any) Can Be Traced to the Wide Reach of Defendants’ Conduct
As an initial matter, the injunction Plaintiffs seek does not suffer from overbreadth. Contrary to Defendants’ contention (Response at 36), the Fifth Circuit has frequently upheld enforcement of injunctions which impact non-plaintiffs outside of the class action context. See, e.g.: Villas at Parkside Partners v. City of Farmers Branch, Texas, 726 F.3d 524, 539 (5th Cir. 2013) (enjoining a city housing ordinance where plaintiffs did not sue as a class); United States v. McLeod, 385 F.2d 734, 746-47 (5th Cir. 1967) (precluding enforcement of local law in order to protect the civil rights of "citizens generally); United States v. Wood, 295 F.2d 772, 781 (5th Cir. 1961) (creating a cause of action for the government to assert the voting rights of all AfricanAmerican citizens registered to vote).9 Indeed, in Veasey, the voter ID case, the Fifth Circuit en banc adopted relief for individual voter Plaintiffs that applied state-wide. 830 F..3d at 272.
Defendants also complain in their response that because equal treatment could supposedly be achieved by withdrawing the right to vote by mail from every registered Texas voter, this Court cannot issue an injunction requiring Texas to offer vote by mail ballots to all Texas voters. Response at 36-37. As an initial matter, this argument rings hollow given Texas’s repeatedly
9 The case on which Defendants rely in making this argument, In Re. Abbott, does not stand for the broad proposition that district courts lack the authority to issue injunctions like the one sought in this case. In In re Abbott, the appellate court merely found in that specific case that “The district court lacked authority to enjoin enforcement of [the challenged statute] as to anyone other than the named plaintiffs,” In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (emphasis added), and did not, as Defendants suggest, announce a general rule that “a district court lacks the authority” to do so under any circumstances (Response at 36 (emphasis added)).
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expressed interest in protecting the health of its voters 65 and older (although apparently not the health of its voters younger than 65).
Moreover, as the Court in Sessions v. Morales-Santana (cited by Defendants) noted, "[o]rdinarily . . . 'extension,' rather than nullification, is the proper course." 137 S. Ct. 1678,1699 (2017). The Court in Morales-Santana noted that a court “can” withdraw benefits from the favored class (not that it must), held that” [t]he choice between these outcomes is governed by the legislature’s intent,” and cited a number of cases in which the Court struck discriminatory exceptions denying benefits to discrete groups, which meant benefits previously denied were extended.” Id. at 1699 (emphasis added). Whatever the meaning of the disability exception in Tex. Elec. Code Section 82.002, it cannot be true that the Legislature explicitly decided that Texans must vote in person during pandemic circumstances. In this case, the legislature’s intent in creating the statute is clear: to expand the right to vote. This Court need look no further than to the State’s own Response, in which Defendants contend that the “State’s decision to allow older Texans to vote by mail without extending that privilege to everyone is a rational way to facilitate exercise of the franchise for Texans who are more likely to face everyday barriers to movement, outings, and activity than younger people.” Id. at 23 (emphasis added). According to Defendants themselves then, the Legislature intended the statute to expand, not limit, the franchise in Texas, and thus the Court has clear guidance to extend, rather than nullify, the right to vote by mail.
VI. This Court Should Not Abstain Where, as Here, Plaintiffs Have Cognizable Federal Constitutional Claims and Failure to Remedy Them Would Cause Irreparable Harm
Abstention in this case is improper as the state law determination will not moot nor present in a different posture the federal constitutional questions raised by Plaintiffs. Plaintiffs allege clear violations of their federal constitutional rights under the Equal Protection Clause and Twenty-Sixth
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Amendment that stand regardless of resolution of the state law question, which only bears on one of Plaintiffs claims. Unlike the Defendants’ contention, resolution of this issue, however, is neither “dispositive of the case” before this Court, nor would its resolution “materially alter the constitutional questions presented” by Plaintiffs’ claims. Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000). Regardless of whether the challenged provision of Texas Election Code is resolved in Texas state court, and there is no indication that such clarification will come soon. Furthermore, the evidence questions whether the state’s executive branch would follow such a ruling anyhow, it did not the trial court’s injunction. Meanwhile, Texas voters are waking every day to make the choice to request a mail ballot and have it rejected (and be criminally prosecuted) or wait further and potentially request the ballot too late or do so with an avalanche of others that overloads the electoral system. the orderly administration of the election requires resolution now. The state has had ample opportunity to resolve the state law legal issues and has not done so; indeed executive branch officials have thwarted such timely resolution. The question of whether the current circumstances violate the U.S. constitution remains and must be answered by this Court.
Abstention is also improper because the July run-off election is weeks away. There is no guarantee that the state court proceedings will have resolved the issue before this election, leaving Plaintiff’s federal constitutional rights in limbo and violated. “The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers.” Baggett v. Bullitt, 377 U.S. 360, 375 (1964). In fact, the stay of a federal decision is “an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (quoted in Colorado River Water Conservation District v. United
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States, 424 U.S. 800, 813 (1976)). “[A]bstention is the exception rather than the rule.” Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981).
Defendants inaptly argue that the Plaintiffs have “manufactured uncertainty about eligible to vote by mail,” yet the Defendants, especially Defendant Paxton’s communication with the public and election officials through non-binding statements regarding vote by mail are the reason that there is uncertainty about voting by mail. Response at 9. The state’s own petition to the Texas Supreme Court filed yesterday all but acknowledges that the vast majority of the voters in the state live in counties which are following Judge Sulak’s ruling. Defendants are the ones who want to disrupt the status quo, and short of that, cloud the election machinery with threats of criminal prosecution. Defendant’s argument in favor of this court granting abstention precariously sits on a mountain of “mights” about the possibilities stemming from a state court proceeding, none of which directly influence the federal constitutional claims. Plaintiffs allege prima facie discrimination on the basis of age in violation of the U.S. constitution, a claim that only this court can resolve. Abstention is inappropriate in this case, for the same reason that it is “particularly inappropriate” in voting cases. See Siegel, 234 F.3d at 1174. Constitutional “deprivations may not be justified by some remote administrative benefit to the State.” Harman, 380 U.S. at 542. As such, abstention is improper.
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VII. The State Defendants Cannot Claim Sovereign Immunity In their Response, Defendants argue that the State Defendants (i.e., Defendants Abbott,
Paxton, and Hughs) have sovereign immunity because they do not enforce the Texas Election Code, and thus the Ex Parte Young Doctrine does not apply. Response at 12-17. This argument is meritless.
Ex Parte Young provides an exception to sovereign immunity when the defendant enforces the challenged statute “by virtue of his office.” City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). Ex Parte Young requires two analyses: first, a “straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective,” and second, consideration of whether the official in question “has a ‘sufficient connection [to] the enforcement’ of the challenged act.” Id. The Complaint in this case alleges numerous violations of federal law and seeks prospective relief (see generally, Compl.), and, as explained below, all of the State Defendants have a sufficient connection to the enforcement of the Texas Election Code.
As to Defendant Hughs, the Fifth Circuit has already determined, in another case, that “[t]he facial invalidity of a Texas election statute is, without question, fairly traceable to and redressable by the State itself and its Secretary of State, who serves as the ‘chief election officer of the state.”” OCAGreater Houston v. Texas, 867 F. 3d 604, 613 (5th Cir. 2017). In OCA-Greater Houston, the court found that because the Secretary of State is Texas’s Chief Election Officer and is required to “obtain and maintain uniformity in the application, operation, and interpretation of” the Texas Election Code, Tex. Elec. Code § 31.003, the Secretary was positioned to redress the plaintiffs’ injuries caused by a generally applicable election law. Id.; see also United States v. Texas, 422 F. Supp. 917, 921 (S.D. Tex. 1976) (rejecting motion to dismiss in case regarding Texas election law by Texas Secretary of
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State due to Secretary’s position as chief elections officer and duty to maintain uniformity in application, operation, and interpretation of election laws).
The other State Defendants also have no immunity under the Ex Parte Young doctrine, as they both enforce or control the Texas Election Code. Indeed, in cases in front of the federal courts of Texas, “the State [has] concede[d] that the attorney general has the duty to enforce and uphold the laws of Texas.” City of Austin v. Abbott, 385 F. Supp. 3d 537, 545 (W.D. Tex. 2019). Further, Defendant Paxton’s threat of prosecution and likelihood that he will bring an enforcement proceeding against local election administrators and voters’ bears “some connection” to enforce Texas Election Code and qualifies as a proper defendant. And because both Defendant Abbott undoubtedly “would be important to any remedial process this Court may order,” he is a proper defendant as well. See Terrebonne Par. NAACP v. Jindal, 154 F. Supp. 3d 354, 362 (M.D. La. 2015) (finding that the governor and attorney general were proper defendants because “[b]ased on their powers and duties, [they] . . . will be instrumental in devising and enforcing a remedy that this Court may potentially order”).
Defendants construe the Ex Parte Young doctrine much too narrowly, as evidenced by the their argument (rejected in this Circuit) that not even the Secretary of State is properly sued for challenges to the Texas Election Code. As the Fifth Circuit has made clear, Ex Parte Young merely requires “some scintilla of ‘enforcement’ by the relevant state official with respect to the challenged law.” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). Here, Defendant Hughs holds clearly defined responsibilities relating to Tex. Elec. Code § 82.001-4’s implementation. See Tex. Elec. Code § 31.003 (“The secretary of state shall obtain and maintain uniformity in the application, operation, and interpretation of this code and of the election laws outside this code”). Further,
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Defendants Hughs and Paxton both have instructed local election officials regarding COVID-19 and mail ballots as a way to control local election administrators. Motion at 8. As to Defendant Abbott, it is Defendants themselves who in their Response detailed the numerous measures that the Defendant Abbott has taken in enforcing the Election Code. See Response at 3 (noting that, “[t]o date, the Governor has” changed the date of special election, allowed political subdivisions to postpone elections, postponed the May 26 primary runoff, and issuing proclamations relating to early voting) (emphasis added). In light of those admissions, Defendants’ claim that “the Governor does not enforce the Texas Election Code, and, more specifically, does not administer Texas elections” bears little credibility.
Finally, Defendants seek to limit Ex Parte Young’s applicability to situations involving prohibitory injunctions, and not those involving “mandatory injunctions directing ‘affirmative action.’” Response at 15. But no such distinction exists in the law. Rather, under Ex Parte Young, a federal court . . . may enjoin state officials to conform their future conduct to the requirements of federal law,” McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004), because “[a]n injunction to prevent him from doing that which he has no legal right to do is not an interference with the discretion of an officer.” Ex Parte Young, 209 U.S. at 159. In this case, Plaintiffs’ proposed injunction is exactly that. See Dkt. 10-5 at 2 (Plaintiffs’ Proposed Order) (enjoining Defendants from denying a mail in ballot to any Texas voter that applies for a mail-in ballot because of the risk of transmission of COVID-19 and from issuing threats to or seeking criminal prosecution of voters and others advising voters on mail ballot eligibility based on the risk of transmission of COVID-19). Defendants have no legal right to either deny those ballots or issue such threats, and thus the Ex Parte Young exception applies in this case.
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VIII. Plaintiffs All Have Article III Standing to Pursue their Claims All Plaintiffs easily meet the requirements for Article III standing, as each has suffered and
will continue to suffer legally cognizable injuries because of Defendants’ actions. To establish Article III standing, a plaintiff must show (1) an “injury in fact” that is concrete, particularized, and actual or imminent; (2) that the injury is “fairly traceable” to the challenged conduct of the defendant; and (3) that it is likely that the injury can be redressed by a favorable decision. Lujan, 504 U.S. at 56061. Because Plaintiffs seek injunctive relief, only one party need have Article III standing for the case to proceed. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006); Texas v. United States, 945 F.3d 355, 377–78 (5th Cir. 2019). Defendants’ interpretation of the Texas Election Code and refusal to follow the state court order, as evidenced by the threats of prosecution by Defendant Paxton, directly injure Plaintiffs Gilberto Hinojosa, Joseph Daniel Cascino, Shanda Marie Sansing, and Brenda Li Garcia.
Moreover, contrary to Defendants’ assertions, Plaintiff Texas Democratic Party (“TDP”) presents a classic example of both organizational and associational standing. The Supreme Court has long recognized that a direct organizational injury is cognizable in two ways: (1) a diversion of organizational resources to identify or counteract the allegedly unlawful action, or (2) frustration of the organization’s mission. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). And the Fifth Circuit has affirmed that “an organization may establish injury in fact by showing that it had diverted significant resources to counteract the defendant’s conduct; hence, the defendant’s conduct significantly and ‘perceptibly impaired’ the organization’s ability to provide its ‘activities—with the consequent drain on the organization’s resources.’” NAACP v. City of Kyle, Tex., 626 F.3d 233, 238 (5th Cir. 2010) (quoting Havens Realty Corp., 455 U.S. at 379).
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First, it is TDP’s election the Governor has moved to July and that the state purports to regulate. TDP will decide in this runoff election who among the candidates can run with the Democratic Party imprimatur in November. The State purports to dictate who can meaningfully participate in the Democratic Party’s nominating process. And, if successful, it is the opinion of TDP that results from a survival of the fittest election that Texas hopes to impose, are democratically suspect. If the state can constitutionally dictate who and how people can participate in TDP’s nominating process, it must be true that TDP has standing to question the constitutionality of those regulations in federal court.
Also, the Complaint alleges, and Plaintiffs have supported with evidence, concrete and particularized facts for the TDP that demonstrate the impairment of their mission and consequent diversion-of-resources from other specific organizational priorities to counteract the burdens placed on the TDP due to the State’s interpretation of the Section 82.002(a). Additionally, the State’s interpretation will directly harm the TDP by frustrating their mission of turning out voters and ensuring fair and equitable elections. The harm will force this plaintiff to divert resources away from existing projects and towards effort to ensure that voters are not disenfranchised by choosing their health, the health of others, and their safety and their right to vote by the State’s interpretation of the Texas Election Code. These harms are plainly traceable to the Defendants who are refusing to follow the state court order and threatening voters who request or use an absentee ballot due to COVID-19 with prosecution.
TDP also has representative or associational standing, which allows an organization to bring suit when: “(1) the association’s members [or constituency] would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the
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purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members.” TDP v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). TDP meets this test on behalf of both voters who intend to support Democratic candidates for offices across Texas in the 2020 general election, and also on behalf of the candidates TDP has endorsed and support. Indeed, the Fifth Circuit has specifically held in Benkiser that TDP has standing in these kinds of cases.
Defendants inexplicably contend that the TDP has failed to identify any injured members (Response at 17), despite the fact that one of the individual Plaintiffs, Gilberto Hinojosa, is the chairman (and member) of the TDP, as are the other individual Plaintiffs. See, e.g., Compl., ¶ 54. In any event, there is no requirement that a plaintiff must name the individuals on whose behalf they assert associational standing. See Hancock Cty. Bd. of Supervisors v. Ruhr, 487 F. App’x 189, 198 (5th Cir. 2012) (“We are aware of no precedent holding that an association must set forth the name of a particular member in its complaint in order to survive a Rule 12(b)(1) motion to dismiss based on lack of associational standing.”).
IX. Conclusion For the reasons stated herein and in the Motion, this Court should issue a preliminary
injunction against Defendants in this case. Respectfully submitted, TEXAS DEMOCRATIC PARTY By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111
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Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC SBN #: 24059153 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been sent via
the Court’s electronic filing system to all counsel of record on May 14, 2020.
/s/ Chad W. Dunn Chad W. Dunn
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 Case 5:20-cv-00438-FB Document 66 Filed 05/14/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY,

§

GILBERTO HINOJOSA, Chair of the §

Texas Democratic Party, JOSEPH

§

DANIEL CASCINO, SHANDA

§

MARIE SANSING, and BRENDA LI §

GARCIA

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; §

RUTH HUGHS, Texas Secretary of State, DANA DEBEAUVOIR, Travis County Clerk, and JACQUELYN F. CALLANEN, Bexar County Elections Administrator

§ § § §

Defendants.

§

§

CIVIL ACTION NO. 5:20-CV-00438-FB

AMICUS BRIEF OF HARRIS COUNTY, TEXAS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

TO THE HONORABLE JUDGE FRED BIERY: Harris County, Texas, respectfully submits this amicus curiae brief in support of Plaintiff's
Motion for Preliminary Injunction, set for hearing on May 15, 2020, and would show this Court as follows.

Exhibit A

Case 5:20-cv-00438-FB Document 66 Filed 05/14/20 Page 2 of 22
INTEREST OF HARRIS COUNTY AND SUMMARY As the largest and most diverse county in the state, and currently stricken by the greatest number of COVID-19 cases and deaths, Harris County has an intense interest in this case and in a resolution to the legal issues surrounding holding an election during a dangerous pandemic so that it may conduct a safe and fair election during both the July primary run-off and the November general election. To advise the Court on facts relevant to election administration and underlying claims in this case, Harris County submits an Appendix which includes a declaration of its Administrator of Elections Department, Michael Winn (“Winn Decl.”). Nothing about this case is contingent or speculative ¾ other than the exact number of deaths and cases of serious illness Texas and Harris County will see due to COVID-19. A deadly pandemic continues with daily new case counts in Texas not dropping1 even as the State plans to “open up.” Voters are concerned for their health and safety as are election workers. With a population larger than 27 states, it is home to the most diverse population and electorate in Texas with its citizens speaking more than 145 languages.2 The size and scope of the County make the smooth operations of elections challenging in the most ideal of circumstances. Winn Decl. at ¶¶ 10, 13. The ongoing threat of COVID-19 presents unique challenges that affect safe voting access throughout the country, and poses no time for partisan rancor to tie the hands of election administrators by limiting the application of existing law. Rather, governments must cooperate to safeguard the health and safety of their citizens. In addition to representing the interests of its
1 See Dept. of State Health Services, COVID-19 Dashboard, Daily New Cases, https://tabexternal.dshs.texas.gov/t/THD/views/COVIDExternalQC/COVIDTrends?:isGuestRedirectFromVizportal=y&:embed=y 2 See Lomi Kriel, Just how diverse is Houston, 145 languages spoken here, HOUSTON CHRON., Nov. 5, 2015, https://www.houstonchronicle.com/news/houston-texas/article/Houstonians-speak-at-least-145-languages-at-home6613182.php.
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County Clerk and elections administration department, Harris County represents the People of Harris County in ensuring that their constitutional rights to vote and fundamental fairness in the electoral process is preserved. This includes not having their government make endangering one’s health a condition to exercising the right to vote.
Harris County writes to support the Plaintiffs’ position, to advise on the status of preparations to hold a safe and fair election, to describe the problems arising from the Texas Secretary of State (“SOS”) ineffective guidance, and to warn of the threats to voting rights and liberty levied by Texas Attorney General Ken Paxton (“AG Paxton”). First, the ongoing COVID19 pandemic has a profound and practical impact on the ability to hold in-person early and Election Day voting. Application of the existing and broad “disability” definition thankfully will enable increased vote by mail (“VBM”) which will serve both to flatten the curve of voter congregation during in-person voting and enable individual at-risk voters to protect themselves. However, the State of Texas refuses to apply the plain language of the law or fully cooperate in efforts to ensure a safe election. Second, AG Paxton’s penchant for threatening criminal prosecution to voters, public officials, and presumably even the undersigned counsel for advising their client of the law and court rulings amounts to prohibited voter intimidation and violations of free speech rights and should be enjoined. Finally, VBM age restrictions along with the State’s injection of confusion regarding what is a “disability” will have a disparate impact on younger and minority voters given Harris County’s demographics.
In addition, Harris County seeks to support its elections administration to work toward viable solutions for the County and the State to hold a safe and fair election during the COVID-19 pandemic ¾ regardless of political party affiliation. Much like “flattening the curve” of the pandemic, a safe and fair election will require flattening the curve of voters congregating in
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locations where they physically cannot socially distance. This can be accomplished in large part by expanding VBM from its current typical ratio in a general election of under 10% or the widely varying ratio in primary run-offs of 15% to 40% to a stable, higher percentage so that the in-person voters whether during early voting or election day are decreased to a safely manageable number. Winn Decl. at ¶¶ 31, 36.
Plaintiffs argue, and Harris County strongly concurs, that COVID-19 places all voters in the position of contracting a disease that may be fatal or cause severe suffering with long-term health consequences ¾ that is, “injuring the voter’s health” ¾ should they be forced to vote in person. Consequently, because no one is known to be immune to COVID-19, all voters should be free to vote by mail in the July 14 run-off and the November election. Despite the State’s rhetoric, neither the Plaintiffs nor Harris County are asking for an all-VBM election. See State Def’s Resp. to Motion for Preliminary Injunction, Doc. 39 at 31 (“Doc. 39”). Rather, Harris County and its elections administrator need a variety of tools to spread out voter congregation and respond to the pandemic’s ebb and flow, including lessening the number of in-person voters through full application the existing broad definition of “disability.” See Winn Decl. at ¶¶ 30, 49. I. Young and diverse, Harris County has been hit hard by COVID-19 and its population
will be disproportionately affected if VBM is not widely available. Harris County, Texas, is the largest county in the state with 4.7 million people and at almost 2.4 million or 14% of the state’s registered voters. Winn Decl. at ¶ 10. Harris County is also Texas’s largest “majority-minority” county, with sizable populations of African-Americans, Latinos, and Asian Americans. Currently, ballots are printed and administered in four languages, English, Spanish, Vietnamese, and Chinese ¾ the most in Texas. Winn Decl. at ¶ 33. Harris County’s diversity makes holding a safe and fair election more challenging. Ensuring that all eligible voters have safe and effective access to voting during a pandemic requires sensitivity to
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that diversity and the particular impact of COVID-19 on the County.

A. Harris County’s youth and diversity makes VBM disproportionately less
available to its citizens.

Harris County’s tremendous diversity is not uniformly represented across every age

demographic. Harris County is younger and more diverse than Texas as a whole. While 12.5%

of Texans are over 65 years old, only 9.9% of Harris County residents are.3 Moreover, while

approximately 40% Texans are Anglo, only about 30% of Harris County residents are. These

demographics are shown in the following tables compiling census data:4

Table 1 – Harris County Racial Demographic Totals & Percentages (2019)

Demographic

Percentage

Number

Anglo

29.1%

1,371,578

Latino

43.3%

2,040,870

African American

19.9%

937,952

Asian American

7.4%

348,786

Table 2 – Number of Harris County residents by Age & Race (2018)

Age

Total

Anglo

Latino

African

Asian

American American

Children

1,253,744 188,061 714,634 200,599 104,060

(under 18)

Voting Age 2,964,682 1,156,225 1,185,872 397,267 186,744

(18-65)

Elderly

464,899 315,666

83,682

42,771

16,736

(65 or older)

Totals

4,683,325 1,659,952 1,984,188 640,637 307,571

As Table 2 indicates, 67.9% of all Harris County residents who are 65 years of age or older are Anglos, but Anglos are less than 40% of Harris County residents 18 to 65 years of age. Elderly Anglos outnumber elderly Latinos nearly 4-to-1, elderly African Americans more than 7-to-1, and

3 Census Quick Facts, Harris County, TX, https://www.census.gov/quickfacts/fact/table/harriscountytexas/PST045218. 4 Census Quick Facts, Harris County, TX https://www.census.gov/quickfacts/fact/table/harriscountytexas/PST045218; cf. Mot. For Preliminary Injunction Doc. 10, at Tables 1 and 2.
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elderly Asian Americans nearly 19-to-1. Texas VBM laws applied to this distribution results in a structurally inequitable voting
system that significantly favors over 65 voters, to the detriment of the vast majority of voting age residents. Anglos make up only 29.1% of Harris County,5 but have the ability to exercise a greater electoral impact during the pandemic because their significantly older population are all free to VBM. As a consequence, any and all election regulations that limit access based upon age, place a clear and obvious burden that effectively limits access to voting based upon race.
The Twenty-Sixth Amendment to the U.S. Constitution provides: “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by . . . any State on account of age.” U.S. CONST., amend. XXVI, § 1. The VBM program ¾ as AG Paxton would apply the law The Twenty-Sixth Amendment to the U.S. Constitution provides: “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by . . . any State on account of age.” U.S. CONST., amend XXVI, § 1. The VBM program ¾ as AG Paxton would apply the law ¾ violates the 26th Amendment by abridging the rights of voters under 65 years of age.
In Harris County, there are an approximately 2,368,761 registered voters and 1,929,801 voters are under 65 years of age ¾ 81% of all registered voters. Winn Dec. at Ex. 1. Voters of color make up a significant number of voters under 65 years old in Harris County. The March 2020 Harris County Voter roll shows that 55% of registered voters under 65 are minorities. Id. While Latino voters make up 23% of all registered voters in Harris County, 88% of Latino voters are under 65 years of age. Id. In essence, the current election process in Texas as applied to Harris County violates Equal Protection and voting rights by treating citizens differently based upon race
5 Id.
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and age.
B. Minorities are disproportionately affected by COVID-19 in Harris County.
With the added impact of the threat of COVID-19, the implications of the use of a voting method that favors Anglo voters over historically discriminated communities is magnified. An analysis of national infection and mortality rates from COVID-19 reveals that minorities may be
more greatly impacted by the disease than the general population.6 According to preliminary
data, African-Americans in particular are significantly more likely to contract and die from COVID-19. In Harris County minorities have higher than average contraction and fatality rates making up the vast majority of COVID-19 cases as the following chart illustrates:7

Harris County COVID19 Confirmed Cases

American Indian/Alaskan Native (.14%)
Asian American/Pacific Islander (4.9%) Black (27.8%)
Hispanic/Latino (45.4%)
Multi-racial (.52%)
Other (.45%)
White (17.4%)
0

500

1000

*Data Provided by Harris County Public Health Through 5/9/2020

1500

6 Stacy Weiner, The new coronavirus affects us all. But some groups may suffer more, ASSOC. OF AM. MEDICAL COLLEGES, Mar. 16, 2020, https://www.aamc.org/news-insights/new-coronavirus-affects-us-all-some-groups-maysuffer-more. 7 This data, provided by Harris County Public Health through May 9, 2020, excludes cases in the City of Houston itself as the City is not tracking cases by ethnicity. See also Zach Despart, Harris County releases first racial, ethnic breakdown of coronavirus deaths, HOUSTON CHRON., Apr. 9, 2020, https://www.houstonchronicle.com/news/houston-texas/houston/article/harris-county-racial-ethic-coronavirus-deaths-data-15189690.php?utm_campaign=CMS%20Sharing%20Tools%20(Premium)&utm_source=t.co&utm_medium=referral
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Because younger voters are more likely to be minorities in Harris County their opportunity to access voting by mail is significantly less than Anglos yet they are at higher risk of serious illness and death from COVID-19. Under these circumstances, the lack of access to VBM creates a disparate impact on the access to a safe and fair election for minority voters. II. The failure of the Secretary of State to fully advise on the COVID-19 pandemic and
the Attorney General’s repeated threats create an urgent need for this Court to protect the constitutional rights of Harris County voters. Harris County Judge Lina Hidalgo declared an emergency over the COVID-19 virus on March 11, 2020. Governor Abbott declared an emergency for the State of Texas two days later. See TEX. GOV’T CODE §§ 401.062, 418.011 et seq. Because of the unpredictability of the COVID19 virus, even if the pandemic subsides, it is unclear when it may re-occur. The premature relaxing of restrictions increases the risk of a COVID-19 recurrence.8 While models and predictions can be made, it is impossible to know for certain when normal social interaction will be safe, and even if it becomes safe, when the pandemic could reoccur with little warning. Conducting elections does not lend itself to short-noticed changes in election procedures given the planning and mustering of resources necessary to conduct an election. Winn Decl. at ¶¶ 8, 9, 11-13, 24, 29, 33. Upcoming July run-off deadlines and the complexity of planning the November election leave no room for “wait and see” what the pandemic or the State of Texas will do. Texas and Harris County are currently scheduled to have primary runoff elections on July 14, 2020, with early voting beginning June 29.9 The last day to apply for a vote by mail ballot is
8 See Tim Colburn, Covid19: extending or relaxing distance control measures, THE LANCET, Mar. 25, 2020, available at https://www.thelancet.com/journals/lanpub/article/PIIS2468-2667(20)30072-4/fulltext. 9 See Governor Abbott Issues Proclamation Regarding July 14 Early Voting for Special, Runoff Elections, May 11, 2020, available at https://gov.texas.gov/news/post/governor-abbott-issues-proclamation-regarding-july-4th-earlyvoting-for-special-runoff-elections; Gov. Greg Abbott, Proclamation, Mar. 20, 2020, available at https://gov.texas.gov/uploads/files/press/PROCLAMATION_COVID-19_May_26_Primary_Runoff_Election_03-
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July 2, 2020. Id. Holding an election in Harris County is a challenge for every election requiring months of preparation. Winn Decl. at ¶ 11. Adjusting to changes for the July 14 run-off will be easier because it is a low turnout election; moreover, it will provide valuable data for planning the November election. Winn Decl. at ¶ 52. Harris County needs as much preparation as possible for the high turnout November presidential year general election to accommodate COVID-19’s effects on public health and safety particularly considering the anticipated added time individuals will take to vote with the repeal of straight-ticket voting and the enormous length of the Harris County ballot. Winn Decl. at ¶¶ 33, 52.
A. Despite the plain language of the “disability” definition, the SOS failed to
fulfill her duty to interpret Texas election laws and only injected legal uncertainty and ultimately a poison pill into the election. As the threat of coronavirus and the resulting COVID-19 pandemic spread this spring, Harris County began to prepare for the primary run-off election which was schedule for May 26. Just a few weeks after the primary, the Governor of Texas issued a Proclamation ordering that the run-off be moved to July 14.10 The Harris County Clerk and its Administrator of Elections Department, Michael Winn, began preparations to conduct an election during the growing pandemic, monitoring closely elections in other states and researching both the science of the pandemic and the options for protecting election workers and voters alike. Winn Decl. at ¶¶ 6, 11, 12, 41. The Harris County Clerk and other election administrators made requests for guidance from the Secretary of State which is tasked with interpreting the Election Code and maintaining uniformity of election administration across the state. Winn Decl. at ¶ 13; TEX. GOV’T CODE
20-2020.pdf; Texas Secretary of State, Current Election Information, available at https://www.sos.state.tx.us/elections/laws/current-elections-information.shtml. 10 Gov. Greg Abbott, Proclamation, Mar. 20, 2020, available at https://gov.texas.gov/uploads/files/press/PROCLAMATION_COVID-19_May_26_Primary_Runoff_Election_03-20-2020.pdf.
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§§ 31.003 (“The secretary of state shall obtain and maintain uniformity in the application, operation, and interpretation of this code and of the election laws outside this code.”), 31.004 (the secretary of state shall provide assistance and advice, including statutory interpretation to elections administrators).
Texas law allows certain voters to request an application to vote by mail. TEX. ELEC. CODE § 84.001. To cast an early voting ballot by mail, a voter must submit an application. Id. at § 84.001(a). To be eligible to receive a ballot by mail, a voter must be: (1) absent from the county of residence during early voting and election day, (2) disabled or ill, (3) age 65 or over, or (4) confined to jail but not yet finally convicted of a felony. TEX. ELEC. CODE §§ 84.001-.004.
Texas law also presciently provides broad definition of “disability” for the purpose of qualifying to VBM defining as a “disabled” voter one who has a:
. . . sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health. TEX. ELEC. CODE § 82.002 (emphasis added). Thus “disability” is something of a misnomer as the definition is much broader than that term is commonly understood. Election administrators naturally thought this broad definition would include those who could contract COVID-19 by voting in-person as polling places tend to be crowded with no room to socially distance. But clear guidance was not forthcoming. On April 2, 2020, the Texas Secretary of State issued Advisory 2020-14-COVID-19 (Coronavirus) Voting and Election Procedures which covered various election procedures in light of the pandemic including the availability of ballots by mail for persons with disabilities: One of the grounds for voting by mail is disability. The Election Code defines “disability” to include “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of need personal assistance or injuring the voter’s health.” (Sec. 82.002.) Voters who meet this definition and wish to vote a ballot by mail must submit an application for ballot
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by mail. SOS COVID-19 Advisory at 2. But the SOS failed to clearly answer the as-applied legal question of who meets the definition in a pandemic when everyone is at risk of contracting the virus.
The Texas Democratic Party then posed the question to a state district court which answered in the affirmative: persons who lack immunity to COVID-19 qualify for VBM under the plain language of the “disability” definition. Order on Application for Temporary Injunction, TDP v. DeBeauvoir, No. D-1-GN-20-001610, 201st Dist. Court, Travis County, Texas, Apr. 17, 2020. The Order did not make any ruling about “fear” of the virus, yet the State of Texas appealed the declaratory judgment and preliminary injunction and has consistently mis-represented the ruling as about mere “fear” of the virus with AG Paxton aggressively threatening anyone who exercises their right to vote safely because of “fear” of the pandemic may be subject to felony charges as would anyone who advises them of that course of action. See Winn Decl. at Ex. 5.
AG Paxton previously opined that the definition of “disability” is exactly what the statute says, although his onslaught of threats now backtracks on that analysis. See Tex. Att’y Gen Op. No. KP-0009 (2015) at 2. This Opinion’s analysis notes that “while proof of disability may not be necessary to apply for a mail-in ballot, its production may be compelled if a voter’s qualifications for voting by mail is challenged in court.” Id. at 1-2, n.2. Moreover, if a voter’s qualification as “disabled” is successfully challenged, that voter’s vote is void. Id. (citing Tiller v. Martinez, 974 S.W.2d 769, 775 (Tex. App. – San Antonio 1998, pet. dism’d w.o.j.)). This raises another problem with the State-created ambiguity: widespread election contests. Without legal clarity any election results will be subject to an election contest and voters who tried to preserve their health and life by voting by mail will be subject to subpoena, having their vote voided, and possible prosecution. Unless this Court grants the preliminary injunction the SOS will have, in effect, successfully infected the election with a poison pill.
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B. AG Paxton focuses his threats of prosecution on Harris County officials.
To prepare the elections, the Harris County Clerk sought resources to successfully implement a safe and fair election. On April 28, the Harris County Commissioner’s Court voted to make up to $12 million available to cover personal protective equipment (“PPE”) for election workers, sanitation supplies, and the added costs the anticipated higher ratio of VBM as processing mail-in ballots is more expensive per vote than in-person voter. Order of Commissioners Court, Winn Decl. Ex. 2. This act of preparation inexplicably drew the ire of the Attorney General.
The Attorney General’s press statements and abject refusal to accept the trial court’s preliminary injunction have not only injected uncertainty into the process but directed threats of criminal prosecution to voters and those who advise voters including the Harris County Judge, the County Clerk, and presumably even the undersigned counsel. These missives have not been limited to simply answering a state representative’s question, as the State’s brief would have this Court believe. See Doc. 39 at 15-16, 21. On May 1, Attorney General Ken Paxton issued a second “advisory,” this one directed at county election administrators (normally the province of the Secretary of State) and again threatening voters and those who advise them with felony charges should they VBM under the “disability” category because of the pandemic. The memo was accompanied by a press release that singled out the Harris County Judge and County Clerk:
Several county officials throughout the State, including the Harris County judge and clerk, are misleading the public about their ability to vote by mail, telling citizens that in light of COVID-19, anyone can claim a “disability” that makes them eligible for ballot by mail. AG Paxton Advises County Officials to Avoid Misleading the Public on Vote by Mail Laws, May 1, 2020, see also Paxton Memo to County Judges and County Election Officials, Winn Decl. Ex. 5. This threatening focus on the Harris County Judge bears mentioning because other counties were making similar preparations and other county officials have voted for, discussed, or made
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public statements about the issue. But Paxton chose to focus on County Judge Lina Hidalgo, the only Latina and only immigrant county judge of the largest Texas counties.
The State argues that the Plaintiffs have made no allegations that Paxton has “threatened to bring criminal proceedings against them.” Doc 39 at 21. But he has directly singled out and threatened the Harris County Judge and Clerk merely for discussing a court order and preparing for a safe and fair election, again pointedly citing to statutes that carry felony charges. Thus, that threat of enforcement is more than “chimerical,” as the State claims. See Doc 39 at 21. III. The July 14 primary run-off and the need for VBM to flatten the curve of voter
congregation. While Governor Abbott has just issued a proclamation increasing the time for in-person early voting by a week for the July 14 run-off,11 this increase does not help those voters who may be particularly susceptible to the pandemic’s horrors and wish to VBM as a result and does nothing to decrease the number of in-person voters who must be accommodated in a manner to allow social distancing. Winn Decl. at ¶ 49.
A. While in-person voting creates a range of risks for election workers and voters,
increased VBM offers an opportunity to effectively provide socially distanced voting. Under the current election process, election judges and workers are required to install, activate, and operate voting booths and equipment and dismantle them at the end of the day after mass voter usage. Winn Decl. at ¶¶ 41, 43. Election workers must handle identification cards handed to them by voters and pass paperwork back and forth with voters. Winn Decl. at ¶ 43. These workers will be subject to direct contact with potentially hundreds of individuals a day, many of whom may be infected or carrying COVID-19. The result of the exposure could see the
11 See Governor Abbott Issues Proclamation Regarding July 14 Early Voting for Special, Runoff Elections, May 11, 2020, available at https://gov.texas.gov/news/post/governor-abbott-issues-proclamation-regarding-july-4th-earlyvoting-for-special-runoff-elections
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possibility of many workers contracting COVID-19 and workers unaware they have the virus infecting voters in turn inflaming the pandemic. Indeed, this scenario has already played out in Florida and Wisconsin, where the states went ahead their primaries only to see election workers test positive for COVID-19.12 The State and the Republican Party of Texas downplay the incidence of coronavirus transmission during other state’s elections. See Doc. 39 at 34; Doc. 411. But any incidence is meaningful to that election worker or voter and their families whether the virus is spread without symptoms to yet others, only causes a mild illness, requires hospitalization, or a results slow painful death on a ventilator without the comfort of family or friends. The State fails to explain how many cases of COVID-19 or resulting deaths are necessary to trigger a constitutional problem. Harris County submits that the number is one and it is the government’s duty to strive for zero.
When it comes to individual voting rights, any battle of epidemiological experts is beside the point. There is no question a deadly pandemic is ongoing and will continue for months. Moreover, even as the state argues here that the pandemic is not such a problem or a threat to voter’s health and lives that the federal courts should act, the Governor has again extended his declaration of emergency,13 and the U.S. Senate this week held a virtual hearing because the nation’s head immunologist had been exposed to COVID-19 and is self-quarantining. All voters should have the right to decide from themselves whether their risk for COVID-19 warrants avoiding in-person contact, sanitation measures or not, and vote by mail.
12 See Winn Decl. at ¶¶ 7, 45; David Smiley and Bianca Padró Ocasio, Florida held its primary despite coronavirus. Two Broward poll workers tested positive, MIAMI HERALD, Mar. 27, 2020, https://www.miamiherald.com/news/politics-government/article241539451.html. 13 Proclamation Renewing the Declaration Stating that the Novel Coronavirus (COVID-19) Poses and Imminent Threat of Disaster for All Counties in Texas, May 12, 2020, available at https://gov.texas.gov/uploads/files/press/DISASTER_renewing_covid19_disaster_proclamation_No_2.pdf.
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The risk of holding full volume in-person elections in Harris County would be significantly more acute because of the age of many of the election workers. The average of election workers in Harris County is approximately 68 years old. Winn Decl. at ¶ 30. Approximately 41% of election workers are over the age of 65. Id; Stein Decl. at App. 49. The CDC has indicated that older persons are at particular risk of suffering greater illness and death rates from the COVID-19, and thus should take greater precautions to avoid contracting the disease; moreover, people over 65 years old are at a greater risk of hospitalization and requiring intensive care placing a greater strain on the health care system when outbreaks occur among this demographic.14
Harris County currently has over 750 election-day voting center locations and 57 early vote locations. Winn Decl. at ¶ 27. Election day requires more than 6000 workers to effectively administer an election. Id. Workers would be forced to decide between the possible risk to their health through exposure or refusing to work which could result in the closure of voting locations. The resulting disruption would result in an even more crowded and chaotic voting process that would likely endanger the workers and voters alike, through even more exposure to a greater number of people at fewer locations, and as voters are forced to wait in longer lines risking greater exposure. Such conditions amount to voter suppression as voters leave polling locations because they do not want exposure to a potentially deadly virus, simply cannot wait any longer to vote, or decide not to attempt to vote at all to protect their health.
B. Voters are already choosing VBM for the July 14 run-off including under the
“disability” category. The vote-by-mail (“VBM”) process is a lengthy and technical one. See Winn Decl. at ¶¶ 15-26. Voters are already requesting VBM and have been submitting applications since the
14 See CDC, Older Adults, Apr. 7, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/olderadults.html.
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March 2 primary. There were 70,953 applications for VBM in the primary in Harris County.15 As of May 9, there were already 78,616 VBM applications for the run-off. Winn Decl. at ¶ 33. This number includes the significant number of voters, about 85% of total VBM requests to date, who request VBM on an annual basis, leaving 11,172 as new VBM requests. Winn Decl. at ¶ 33.
During the primary in Harris County 96.2% of the VBM applications were submitted under the 65+ category and only 0.8% were from the “disability” category. Winn Decl. at 34¶. The bulk of the requests came four-to-six weeks before the primary. Id. Although that time period for the postponed run-off has not yet arrived Harris County has already exceeded the total number of requests from the primary. In addition, an uptick in requests in early June is likely as campaigns begin encouraging voters to submit applications through their mail campaign programs. Winn Decl. at ¶ 34.
Of the 11,172 requests post-primary through May 9, 95.8% were in the 65+ age category while 2.9% were from the “disability” category. Id. Harris County was already seeing an uptick in “disability” VBM applications before the state trial court’s April 17 ruling with ratio doubling from the primary. Winn Decl. at ¶ 35. Since the trial court’s ruling and the resulting publicity, the ratio of “disability” VBM applications has increased to 8.6% of those additional applications submitted since the ruling. Winn Decl. at ¶ 35. In sum, the VBM requests are already well underway for the July 14 run-off, and voters are already trending toward requesting VBM under the “disability” category presumably because of the ongoing pandemic. IV. Voters, Harris County, and its Election Administrator Need this Court’s Protection.
Voters need to know there will be safe ways to vote in the July and November elections.
15 Note that this number includes duplicates, bad addresses, etc. and is thus higher than the total ballots sent to voters, total returned, and ultimate total number of VBM ballots counted of 53,910.
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Election administrators need to know clear rules for conducting elections during the pandemic as soon as possible so they may plan accordingly. This ambiguity created by the SOS COVID-19 Advisory and AG Paxton’s mis-representations of the state court order and threats of criminal prosecution threaten to result in a patchwork of decisions by each county’s elections officer, potentially risking the lives of tens of thousands of Texans, and threatening the integrity of the electoral process. This Court must grant the preliminary injunction so that local officials can conduct a safe election free from threats of criminal prosecution from AG Paxton.
A. Voters and election workers want options and safe voting conditions.
Voters want the option to VBM, and election workers want adequate social distancing which is only possible with a higher ratio of VBM. Prof. Robert M. Stein of Rice University as part of his ongoing work studying voter behavior has conducted polls of both Harris County likely voters and its election workers to ascertain their concerns about voting during the coronavirus pandemic. Stein Decl. at ¶ 2. His results demonstrate that every demographic of voters, whether by party, race, age, or gender, prefers having the option to VBM given the pandemic. Stein Decl. at ¶¶ 4, 6, 8-10, Ex. A. Overall, 69.3% of likely voters stated they were very or somewhat likely to VBM if available. Stein Decl. at App. 57-58. Of voters under 65 (i.e., those who must have a reason under Texas law), 66.6% are very or somewhat likely to VBM if available. Stein Decl. at ¶¶ 57-58. Stein concludes that between one-third and one-half of previous in-person voters are likely to choose VBM over in-person voting. Stein Decl. at ¶ 10.
Voting in-person with social distancing is also popular with voters, and many voters would prefer that over VBM. Stein Decl. at App. 57-58. But, effectively having social distancing at inperson locations depends on having more voters VBM so that the curve of voter congregation can
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be spread out. Otherwise, especially in a county as large as Harris County, there will be simply too many bodies to move through too few spaces in too little time.
Prof. Stein also polled 1,800 of the approximate 6,000 Harris County poll workers. Barely half stated they would be likely to work under normal polling conditions, but more than 80% said they would be somewhat or very likely to work if conditions were modified to incorporate social distancing, personal protective equipment, sanitized gloves, or Plexiglas screens. Stein Decl. at ¶ 4, App. 51. The most popular option was social distancing, which again, will not be possible without shifting more voters to VBM. Winn Decl. at ¶¶ 41, 53; Stein Decl. at App. 51
B. Texas Attorney General Ken Paxton heavy-handed prosecutions and threats
is a continuation of a long history of Texas voting rights violation. There is in Texas an unfortunate history ¾ “an avalanche of case studies of voting rights violations” that include “outright intimidation and violence against minority voters.”16 Indeed, when it comes to civic participation, Texas has rarely respected the words and spirit of the Constitution, from the “white primary” cases which finally ended in 1953 only after a twenty-five year series of Supreme Court decisions,17 the poll tax system which endured for nearly 100 years until 1966,18 to illiteracy tests and secret ballots.19 Even after the Voting Rights Act of 1965, Texas persisted with an “ingenuity and prevalence of discriminatory practices” against language minorities, namely Mexican-Americans, prompting the 1975 amendments to the Voting Rights Act. See Briscoe v. Bell, 432 U.S. 404, 405-06, 97 S. Ct. 2428, 2429 (1977). But Texans are a
16 Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 182-83 (2007). 17 Terry v. Adams, 345 U.S. 461 (1953) (striking down Fort Bend County’s Jaybird Association primary); Smith v. Allwright, 321 U.S. 649 (1944); Grovey v. Townsend, 295 U.S. 45 (1935); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536 (1927). 18 U.S. v. Texas, 252 F. Supp. 234, 238 (W.D. Tex. 1966) (striking down Texas’ poll tax because it abridged the right of all Texans to vote). 19 See Veasey v. Abbott, 830 F.3d 216, 231 (5th Cir. 2106) (en banc), cert. denied, __ U.S. __, 137 S. Ct. 612 (2017) (discussing Texas’s storied history of voter suppression).
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tenacious bunch, not easily moved by the mere actions of the Courts and words of the Constitution.
More decades of discrimination against, and intimidation of, minority voters followed.20 Recently,
these invidious efforts have re-surged.
Just last year this Court presided over a case concerning discriminatory acts by the State of
Texas. On January 25, 2019, Texas’ Secretary of State issued an Elections Advisory falsely
claiming that 95,000 non-U.S. citizens registered to vote and that 58,000 voted in one or more
elections.21 AG Paxton and Governor Abbott were so enthusiastic to promote threats of
prosecution of immigrants, they beat the Whitley to the tweet, with Paxton tweeting “VOTER
FRAUD ALERT” repeating the false claim, and promising to “prosecute crimes against the
democratic process . . . .”22 Barely an hour later, the Governor Abbott amplified the message,
retweeting it and thanking the Attorney General and Secretary of State “for uncovering and
investigating this illegal vote registration. I support prosecution where appropriate.”23 Secretary
20 See, e.g., Houston Lawyers Ass’n v. Attorney General of Tex., 501 U.S. 419 111 S. Ct. 2376 (1991) (Texas’ method of electing judges dilutes votes of Black and Latino citizens); Bush v. Vera, 517 U.S 952, 116 S.Ct. 1941 (1996), (Texas continues to engage in discriminatory racial gerrymandering in violation of the Voting Rights Act); League of Latin Am. Citizens v. Perry, 548 U.S. 399, 126 S. Ct. 2594 (2006) (Texas dilutes votes of Hispanics in congressional redistricting); Veasey II, 830 F.3d at 231 (voter identification law has disparate impact upon African American and Hispanic voters). 21 Secretary Whitley Issues Advisory of Voter Registration List Maintenance Activity: “Integrity and efficiency of elections in Texas require accuracy of our state’s voter rolls,” Jan. 25, 2019, https://www.sos.texas.gov/about/newsreleases/2019/012519.shtml; Tex. Sec. of State, Use of Non-U.S. Citizen Data obtained from the Department of Public Safety, Elec. Advisory No. 2019-02, Jan. 25, 2019, https://www.sos.texas.gov/elections/laws/advisory2019-02.shtml. 22 Ken Paxton (@KenPaxtonTX), TWITTER (Jan. 25, 2019, 12:37 PM), https://twitter.com/KenPaxtonTX/status/1088898595653386240; Carlos Sanchez, Former Texas Secretary of State Believes Inaccurate Voting List Should be Rescinded, TEX. MONTHLY Jan. 31, 2019, https://www.texasmonthly.com/politics/former-texas-secretary-of-state-believes-inaccurate-voting-list-should-be-rescinded/; AG Paxton: Texas Secretary of State’s Office Discovers Nearly 95,000 People Identified by DPS as Non-U.S. Citizens are Registered to Vote in Texas, Jan. 25, 2019, https://www.texasattorneygeneral.gov/news/releases/ag-paxton-texas-secretary-statesoffice-discovers-nearly-95000-people-identified-dps-non-us-citizens. 23 Greg Abbott (@GregAbbott_TX), TWITTER (Jan. 25, 2019, 1:57 P.M.), https://twitter.com/GregAbbott_TX/status/1088918898643271680.
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of State Whitley did not get his tweet out to announce the upcoming voter roll purge until nearly an hour later ¾ in a tweet that has since been deleted.24
Under scrutiny, the Secretary’s claims quickly fell apart. Officials in Harris County immediately determined that the vast majority of those on the list25 were, in fact, United States citizens.26 At least one county could not find a single non-citizen on its state-issued list of alleged non-citizen criminal voters.27 Indeed, this very Court28 concluded “that there is no widespread
voter fraud” and the State sent “ham-handed and threatening correspondence” to “perfectly legal
naturalized Americans” that “exemplifies the power of government to strike fear and anxiety to intimidate the least powerful among us.”29
Texas Attorney General Ken Paxton has a penchant for crying “voter fraud” and a habit of
aggressively, and disproportionately, pursuing heavy-handed prosecutions against women and
Hispanics, resulting in lengthy sentences for unknowing violations of the law. For example, the
Attorney General’s Office charged Crystal Mason, who was on probation but thought she could vote; nevertheless, caught a five year sentence.30 Paxton also prosecuted Rosa Maria Ortega in
24 David Whitley (@TXsecofstate), TWITTER (Jan. 25, 2019, 2:49 P.M.), previously at https://twitter.com/TXsecofstate/status/1088931929540431872. 25 The Secretary claimed Harris County accounted for more than 30,000 of the so-called non-citizen registrants. See n.22 supra. 26 Liam Stack, So Far, List Suspect Voters in Texas Turns Out to Be Mostly a List of U.S. Citizens, NEW YORK TIMES, at A11, Jan. 29, 2019. 27 Wallace, supra. 28 See Julieta Garibay et al. v. David Whitley, et al., No. SA-19-CA-159-FB (S.D. Tex), and MOVE Texas Civic Fund, Jolt Initiative, League of Women Voters of Texas, and Nivien Saleh v. David Whitley et al., No SA-19-CA-171-FB (formerly No. 3:19-cv-00041) (S.D. Tex), consolidated with Tex. League of United Latin Am. Citizens et al. v. David Whitley, et al., No. 5:19-cv-00074-FB, Doc. 39 (W.D. Tex.). 29 Tex. League of United Latin Am. Citizens v. Whitley, No. 5:19-cv-00074-FB, 2019 WL 7938511 (W.D. Tex. 2019). 30 State of Texas v. Crystal Mason, Cause No. D432-1485710-00, 432nd District Court, Tarrant County, Texas; Amrit Cheng, Crystal Mason Thought She Had the Right to Vote. Texas Sentenced Her to Five Years in Prison for Trying, ACLU, https://www.aclu.org/issues/voting-rights/fighting-voter-suppression/crystal-mason-thought-she-had-rightvote-texas.
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2017 for two counts of illegal voting.31 Ortega, who had moved to the United States as a child, was a legal permanent resident, and thought she was able to vote, caught an eight year sentence.32 Over a thirteen-year period from 2005 to 2018 at least seventy-three cases were brought, 74% of which were against persons with Spanish surnames and 66% were against women.33
Paxton’s injection of partisan political rhetoric and illogical arguments deepens voter confusion and heightens the as-applied vagueness of the statute. The State argues that “. . . the
voters most at risk of becoming seriously ill from COVID-19 ¾ those who are over 65 or who
have underlying health conditions ¾ are already eligible to vote by mail.” Doc. 39 at 34. Yet
Paxton argues in his Memo that “physical condition” means an “illness or medical problem” and thus voters may not VBM under disability. Winn Decl. at ¶ 51, Ex. 5 at 2. Which is it? Can a voter under 65 with the underlying health condition of a lack of immunity to coronavirus VBM? If not, Texas law as applied by AG Paxton and his threats of prosecution violate voting and Equal Protection rights.
CONCLUSION Recent events in both Texas and the nation have given minority voters a reason to fear exercising their franchise, which in turn makes it more likely they will be intimidated into not voting because of fear of prosecution or susceptibility to COVID-19.34 Given the public
31 State of Texas v. Rosa Maria Ortega, Cause No. 1434155D, Criminal District Court No. 3, Tarrant County, Texas. 32 Sam Levine, This Woman Got 8 Years In Prison For Illegal Voting. Texas Is Showing No Mercy, HUFFPOST (Nov. 30, 2018), https://www.huffpost.com/entry/texas-voter-fraud-prison_n_5c01a9afe4b0a173c02305c1 33 Robert Brischetto, Texas’ desperate search for fraudulent voters, SAN ANTONIO EXPRESS NEWS, Mar. 9, 2019, https://www.mysanantonio.com/opinion/commentary/article/Texas-desperate-search-for-fraudulent-voters13674630.php. 34 Van R. Newkirk, II, Voter Suppression is Warping Democracy, THE ATLANTIC July 17, 2018 (“black and Hispanic voters are . . . more anxious and desperate, and that’s at least in part because democratic norms . . . are crumbling in their hands. Blows to the hard-won victory of the [voting] franchise [impacted the 2016 Presidential election]. But black and Hispanic voters are worried just as much about the elections to come.”). https://www.theatlantic.com/politics/archive/2018/07/poll-prri-voter-suppression/565355/; see also Alex Vandermaas-Peeler et al., American Democracy in Crisis: the Challenges of Voter Knowledge, Participation, and
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statements by the Attorney General and his track record, voters reasonably fear that they shall face criminal sanction if they check the “disability” box on a VBM hoping to avoid a likelihood of harm to their health. “[T]he power of the government to strike fear and anxiety to intimidate the least powerful among us” has escalated to attacking elected officials. It is time for the Court to step in again.
Respectfully submitted, Vince Ryan State Bar No. 17489500 HARRIS COUNTY ATTORNEY Scott Lemond Assistant County Attorney State Bar No. 00791097 Scott.Lemond@cao.hctx.net 1019 Congress, 15th Floor Houston, TX 77002 Telephone: (713) 274-5167 Telecopier: (713) 755-8848
/s/ Susan Hays SUSAN HAYS State Bar No. 24002249 LAW OFFICE OF SUSAN HAYS, P.C. P.O. Box 41647 Austin, Texas 78704 (214) 557-4819 (telephone) (214) 432-8273 (facsimile) hayslaw@me.com
Polarization, PRRI, July 17, 2018, https://www.prri.org/research/American-democracy-in-crisis-voters-midtermstrump-election-2018/.
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APPENDIX
Exhibit A – Declaration of Michael Winn, Harris County Elections Administrator Exhibit 1: Electoral Profile of Harris County, Texas - Estimated Harris County, Texas, Registerd Voter (RV) Racial Demographic Totals & Percentages Exhibit 2: Harris County Commissioner’s Court, Order, Apr. 28, 2020; Harris County Clerk, COVID-19 Agenda Item, Apr. 20, 2020 Exhibit 3: Key Dates Calendar July Run-Off Exhibit 4: Texas Secretary of State, Advisory 2020-14-COVID-19 (Coronavirus) Voting and Election Procedures, April 2, 2020 (SOS COVID-19 Advisory) Exhibit 5: AG Paxton Advises County Officials to Avoid Misleading the Public on Vote by Mail Laws, May 1, 2020, available at https://www.texasattorneygeneral.gov/news/releases/ag-paxton-advisescounty-officials-avoid-misleading-public-vote-mail-laws; Ken Paxton, Memo to County Judges and County Election Officials, May 1,2020.
Exibit B – Declaration of Robert Stein, Professor of Political Science, Rice University Exhibit 1: 2020 Harris County Voter and Poll Worker Survey
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DECLARATION OF MICHAEL WINN, HARRIS COUNTY ELECTIONS ADMINISTRATOR
“I declare under penalty of perjury that the foregoing is true and correct:
1. My name is Michael Winn and I am submitting this declaration to explain election
processes, current thinking on best practices for holding a safe and fair election during the COVID-
19 pandemic, and toward that end, ways to spread out the volume of voters so that social distancing
will be possible. Attached to my declaration are the following Exhibits, which are true and correct
copies:
Exhibit 1: Electoral Profile of Harris County-Estimated Harris County, TX, Racial Demographic Totals & Percentages
Exhibit 2: Harris County Commissioner’s Court, Order, Apr. 28, 2020; Harris County Clerk, COVID-19 Agenda Item, Apr. 20, 2020
Exhibit 3: Key Dates Calendar July Run-Off Exhibit 4: Texas Secretary of State, Advisory 2020-14-COVID-19 (Coronavirus) Voting and
Election Procedures, April 2, 2020 (SOS COVID-19 Advisory) Exhibit 5: AG Paxton Advises County Officials to Avoid Misleading the Public on Vote by
Mail Laws, May 1, 2020, available at https://www.texasattorneygeneral.gov/news/releases/ag-paxton-advises-county-officials-avoid-misleading-public-vote-mail-laws; Ken Paxton, Memo to County Judges and County Election Officials, May 1,2020.

Credentials

2. My undergraduate degree is in biology, and before I began working in election

administration, I was a registered sanitarian. I have worked in elections administration for more than

twenty years. I began my elections career in Bexar County in 1997. Then I moved to Travis County

where I started as an election specialist and became the Assistant Elections Administrator in 2008.

In 2010, I was promoted to Elections Administrator where I served until 2018. In 2018, I moved to

Harris County to take to job as the Administrator of Elections. As a result, I have served in various

levels of elections administration in the three of the largest counties in Texas assisting more than

27% of the Texas population to vote.
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3. I hold a certificate as a Certified Election Administrator from the International Association of Government Officials and am very active in my profession serving in multiple elections administration organizations. I served as the President of the International Association of Clerks, Recorders, Election Officials and Treasurers (“IACREOT”) in 2015. I currently serve on the Board of Advisors to the Federal Elections Assistance Commission and have served in the following positions since my initial appointment in 2015: Secretary, Vice-President, and Board Chair.
4. I am also a member of the National Association of Elections Administrators (a.k.a. the Elections Center, https://www.electioncenter.org) where I also achieved certified election administrator status.
5. I serve on the bipartisan coalition committee of national elections administrators. We meet regularly to discuss challenges facing elections administration. I have been appointed on the International Association of Government Officials (“IAGO”) on the Government Coordinating Council of governments of federal, state, and local task force on election matters. I also serve as a representative on the Council of State Governments where we look at initiatives of overseas voting by mail.
6. On April 10, 2020, the Texas Secretary of State (“SOS”) formed a County Election Official Advisory Group including me and several county elections administrators throughout Texas to discuss the COVID-19 pandemic impact on elections administration, with bi-weekly meetings which began on Wednesday, April 15, 2020 and continue to this day.
7. When I am not actively working to plan and execute local elections, I study tactics and experiences from other jurisdictions to learn best practices and new innovations to conduct free and fair democratic elections. I am in regular, informal communications with my colleagues in other jurisdictions, including those that have already implemented population-wide VBM like Oregon,

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Washington State, and Colorado. I have talked with those that just experienced widescale voting problems during the pandemic like the State of Wisconsin. Logistics of Planning an Election in the Best of Times
8. Elections are very complex to plan and implement in a democracy. The system must allow for every qualified voter to have effective access to a ballot and to cast their votes securely and privately. The larger and more diverse a community the more difficult this becomes. The greater the expected voter turnout, such as for a presidential general election, the greater the challenge. Multiple mechanisms of voting are useful as they are more likely to accommodate voters whether VBM, in-person voting during early vote or on Election Day, curb-side voting for the disabled, and other accommodations for voters with special needs.
9. Deep analysis of past voting data is extremely helpful toward planning a given election, although voter behavior can be unpredictable especially when implementing new election or business processes. The July run-off as a low turn-out election offers an lower-risk opportunity to gain data on how voters behave given the pandemic for planning the higher-stakes November election.
10. Harris County is the largest county in Texas and one of the largest in the United States with more than 4.7 million people and almost 2.4 million registered voters comprising approximately 14% of the registered voters in Texas.1
11. I typically spend six to eight months to plan every general election, which includes (1) ascertaining the resources needed to conduct an election from equipment levels to staff funding, (2) itemizing the tasks to be completed before the election, (3) planning a timeline for deadlines and tasks, (4) reviewing past election data from similar and like elections to determine the amount and geographic distribution of likely turnout, and (5) a myriad of other issues that may arise.

1 See data.census.gov.; https://www.hctax.net/Voter/Voter_Demographic/VoterVisualization. DECLARATION OF MICHAEL WINN – Page 3 of 16

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12. Budgeting is of course a crucial issue which is done through the county on an annual basis. While we have a special fund for unanticipated issues, using those funds requires commissioners court approval which takes some time. On April 28, 2020, the Harris County Commissioners Court request authorized the County Clerk’s Office to spend up to twelve million dollars to prepare for the July 2020 and November 2020 elections in anticipation of expanded request from voters for mail in ballots and implementation of public health safety protocols for inperson voting in response to COVID-19. See Ex. 2. Elections costs may also be partially funded by grants and other gifts, which also require commissioners’ court approval.
13. In sum, the mechanism of an election in any county but particularly in one as large and diverse as Harris County is a slow-moving one. Since March 18, our office has been in communication with the Secretary of State raising concerns about the pandemic and requesting guidance. Other than the April 2 COVID-19 advisory, the SOS has offered no guidance on the application of the definition of “disability” in the context of a pandemic. Much like a large ocean liner, we cannot turn on a dime and must look far ahead to steer the ship. The Non-Partisan Nature of VBM
14. In the experience of the Harris County Clerk’s office VBM campaigns were almost exclusively a Republican strategy in Harris County until fairly recently. Our office tracks the source of the ballot requests; it has always been fairly easy to tell who was sponsoring these campaigns because of the design of the application requests. In addition, until recently, the number of mail ballots that cast straight tickets were disproportionately Republican until just these last few elections. Even in 2018, when 55% of the straight-ticket ballots overall voted Democratic and only 44% voted Republican; 51% of the mail ballots were Republicans to 49% for the Democrats.

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The Vote-by-Mail Process 15. The typical VBM process contains many, heavily regulated steps. See Ex. 3. Texas
law limits those who may obtain a ballot to VBM to those who are 65 years old or older, outside the county during the election, “disabled” or ill, or in confinement and not yet convicted of a felony. TEX. ELEC. CODE § 82.001-.004. About sixty (60) days prior to an election, our office conducts logic and accuracy tests to confirm that the correct races are on the ballot, candidate names are spelled correctly, precinct assignment and many other matters to ensure accuracy in the ballots themselves. Voters can be on an “annual list” or can request a ballot by mail for individual elections. TEX. ELEC. CODE § 86.0015. Also, about sixty (60) days before each election, we start reviewing VBM request lists, checking them to ensure they are up to date.
16. Typically, annual requests are from military and overseas personnel, as well as some voters who are 65 or older. Others begin requesting ballots to VBM about 60 days prior to election. Often different campaigns send applications to their likely voters. Voters fill out the application, affix their own postage and rely on the U.S. Post Office (“USPO”) to deliver them.
17. In the March 2020 Primary election, approximately 35% of all voters were 65 years of age or older. In the March 2020 Republican Primary election, approximately 45.8% of all the Republican voters were 65 years of age or older. In the March 2020 Democratic Primary election, approximately 29.1% of all the Democratic voters were 65 years of age or older. In Harris County, the voter roll as of February 1, 2020 shows that 20% of the registered voters are 65 years of age or older.
18. Voting precincts with different district races have different “ballot styles,” and large counties like Harris can have dozens of ballot styles in a given election, We print different ballot styles on demand as requests come in. I have had the luxury of working in counties where VBM ballots are printed on demand but I still must order sufficient ballot printing paper ahead of time.

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Some counties must determine the number of each ballot style needed ahead of time and order sufficient ballots printed for each style to accommodate their voting jurisdiction.
19. We then send ballots out to voters on a continuous basis. Typically, about forty-five (45) days before an election, we first prioritize sending ballots to military and overseas voters, then to others who requested VBM.
20. After voters mark their ballot they must place the ballot in a carrier envelope, seal it, and sign the outside. TEX. ELEC. CODE § 86.005. Voters may return their ballots by mail, common carrier, or in person. TEX. ELEC. CODE § 86.006(a). After voters send their ballot back into our office, a very labor-intensive process begins.
21. An early voting ballot board (“the Ballot Board”) processes the VBM ballots. TEX. ELEC. CODE § 87.001 et seq. The Ballot Board must review ballots that have been returned and verify signatures via its Signature Verification Committee. TEX. ELEC. CODE § 87.027. This is a manual ballot-by-ballot process is conducted on a continuous basis during the early voting period. The individuals who serve on the Ballot Board tend to have significant experience and, like most election workers, tend to be older.
22. The Ballot Board members are selected according to TEX. ELEC. CODE § 87.001 to 87.006. The signature verification committee is selected according to TEX. ELEC. CODE § 87.027.
23. The envelopes containing the ballots “may be delivered to the board between the end of the ninth day before the last day of the period for early voting by personal appearance and the closing of the polls on election day, or as soon after closing as practicable, at the time or times specified by the presiding judge of the board.” TEX. ELEC. CODE § 87.0222. The ballots cannot be tabulated and counted until Election Day. TEX. ELEC. CODE §87.023. The election results cannot be released until 7 p.m. the evening of the election. TEX. ELEC. CODE §61.015. Ballots that are postmarked by Election Day are still counted if they are actually received by the elections office by 5

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p.m. the next business day. TEX. ELEC. CODE § 86.007. This law puts voters at the mercy of the efficiency of the postal service particularly since the USPO has stopped universally postmarking mail. TEX. ELEC. CODE §86.006 provides that voters may personally deliver their ballots “while the polls are open on Election Day,” but may only do so at the early vote clerk’s office (which for Harris County is downtown with no free parking) and must present identification compliant with the “Voter ID” law. TEX. ELEC. CODE §§ 63.0101, 86.006(a-1
24. Typically, the Ballot Board is not done with its work verifying signatures and opening ballots until after election night not only because of late-arriving ballots but also and more so because of the volume of ballots for a high-turnout election like a presidential year general election.
25. Unlike in person, a voter does not know in real time or in a timely enough basis to make corrections before their vote is lost if there is a problem with accepting them as a voter and processing of their vote or even if ballot has been received by the elections administration. VBM presents ballot tracking issues not present with in-person voting.
26. Processing VBMs may require more staff than in-person voting depending on the turn out and ratio of VBM to in-person voting. In a large turnout election, the sheer size of the volume of VBM requires more resources and staffing. For example, in 2018, there were 115,000 VBM processed in Harris County. In our 2020 election planning, we will shift staff resources accordingly in anticipation of a higher ratio of VBM. Early Voting & In-Person Planning
27. Election planning also encompasses in-person early vote and Election Day voting. Approximately 120 to 90 days before the election, our office begins reviewing processes, securing polling locations, forecast staffing and other resources needs, signing up election workers, arranging to train those workers, and engaging in other planning. Our costs estimates are based on type of election from the general, to the primary, down to smaller political jurisdiction elections. For in-

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person voting on Election Day, Harris County requires approximately 6,000 election workers for 750 locations.
28. If there were a change in our election business process within six months of an election, the process is disrupted. The size of the effect of the change and the size of the election proportionately increases that disruption. The closer to an election that a change occurs, the more difficult ¾ if not impossible ¾ it is to adjust our planning, training, staffing, and allocation of resources in order to conduct a well-run election that does not disenfranchise voters.
29. The 2020 election was already subject to great challenges because of the repeal of straight-ticket voting. In Harris County where the ballot is extremely lengthy due to the number of races, straight ticket voting has the effect of speeding up the in-person voting process. Without it, we were anticipating voters needing significantly more time to vote resulting in longer lines and a need for more voting equipment to spread the voters out. This legal change adds to the challenge of conducting a safe and fair election during the COVID-19 pandemic and increases the pressure to encourage voters to use VBM as that gives them ample time to fill out their ballot. Pros and Cons of Different Solutions
VBM in a pandemic 30. The COVID-19 pandemic presents an extremely difficult problem to election administrations and many of the best solutions are hamstrung by Texas election law. We have no track record of data to analyze to plan and implement a fair election. Thus, we should not look at any one solution, VBM or others, as a magic solution to the problem of holding a safe and fair election in a pandemic. There is no single magic bullet. Rather, we should allow election administrators to draw from a variety of tools to accommodate the volume of voters. The more time we have for planning and voter education, the better. Any changes must accommodate all voters and

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all counties. The pandemic will move faster than administrators can plan and implement; thus, we need flexibility and a full toolbox to address the challenge.
31. By increasing the ratio of VBM to in-person voting we can decrease the volume of early voting and Election Day voters. This will enable more social distancing in the polling places and thus a safer election for everyone.
32. With each proposed solution, such as all-VBM, you buy different problems. With an all-VBM election, the sheer size of the number of ballots and the labor- and time-consuming system of processing them to be counted may overwhelm. Nevertheless, we need to make sure make VBM is available to every registered voter because we do not and cannot know their individual circumstances during this pandemic. Perhaps VBM is the most accessible and safest way for an individual voter. Perhaps receiving mail or accessing postage is a challenge and voting in person would be a better way for that voter to vote. Having a variety of options is the best solution to accommodate the number and diversity of voters in Harris County.
33. I doubt if any jurisdiction as large as Harris County can accurately predict what 2.6 million voters will do. One of the primary barriers to expanding the ballot by mail program is the cost and administration of such a change. Currently, ballots are printed and administered in four languages, English, Spanish, Vietnamese, and Chinese ¾ the most in Texas. Major elections in 2016 and 2018 experienced a heavy use of ballot by mail, with about 101,000 votes out of about 1,332,000 voters using this method in 2016 and about 98,000 out of 1,220,000 voters using this method in 2018. These are the two national elections which would give us the best indication of what to expect in 2020. If ballot by mail were permitted generally and promoted as a safe alternative, then it can be expected that this volume would increase more than tenfold in 2020 to approximately one million ballots. Voters are already requesting VBM and have been submitting applications since the March 3 primary. There were 70,953 applications for VBM in the primary in

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Harris County.2 As of May 9, there were already 78,616 VBM applications for the run-off. This number includes the significant number of voters, about 85% of total VBM requests to date, who request VBM on an annual basis, which began before the pandemic hit Texas, leaving 11,172 as new VBM requests.
34. During the primary 96.2% of the VBM applications were submitted under the 65+ category and only 0.8% were from the “disability” category. The bulk of the requests came four-tosix weeks before the primary, as illustrated in the following chart:
VBM App Requests by Days from Election 2020 Primary - Harris County
6000 5000 4000 3000 2000 1000
0 61 57 55 53 50 48 46 41 39 37 35 33 30 28 26 23 21 19 15 13 11 9 7 5
Although we have not yet hit that time period for the run-off election given the Governor’s March 20 order moving the run-off from May 26 to July 14 with in-person early voting set to begin on Monday, June 29, we have exceeded the total number of requests from the primary. Moreover, we can expect an uptick in requests in early to mid-June as campaigns begin encouraging voters to submit applications through their mail campaign programs.
35. Of the 11,172 requests post-primary through May 9, 95.8% were in the 65+ age category while 2.9% were from the “disability” category. We were already seeing an uptick in “disability” VBM applications before the state district court’s April 17 ruling with ratio doubling

2 Note that this number includes duplicates, bad addresses, etc. and is thus higher than the total ballots sent, total returned, and ultimate total number of VBM ballots counted of 53,910.

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from the primary. Since the state court’s ruling and the resulting publicity, the ratio of “disability” VBM applications has increased to 8.6% of those additional applications submitted since that ruling. This ratio was calculated excluding the annual VBM requests that had been submitted during the primary season. In sum, the VBM requests are already well underway for the July 14 run-off, and voters are already trending toward requesting VBM under the “disability” category.
36. Expanding VBM participation from its current typical ratio in a general election of under 10% or the widely varying ratio in primary run-offs of 15% to 40% to a stable, higher percentage so that the in-person voters whether during early voting or election day are decreased to a safely manageable number is a necessary tool for providing a safe election. Typically, the higher the turn-out election the lower the ratio of VBM. This November, with a presidential election during turbulent times I expect a very high turnout, and thus, without changes to voter education and the full application of the broad definition of “disability” I would expect that typically low ratio and thus an unmanageable number of voters to process safely in person.
37. Sending every registered voter a VBM ballot without requiring a request for a VBM
ballot offers an attractive solution. While this method may present some issues like returned mail ballots due to lack of updated voter addresses, it would be a highly effective way to minimize inperson contact. Moreover, doing so would help front-load the voting process and give elections administrators some indication before Election Day what volume of turnout has been shifted to VBM.
38. If we mail each voter a ballot, we likely run into issues with the USPO as ballots may be lost both going to and returning from voters. Reasonable options for returning a mail-in ballot by delivery should be utilized. Voters who do not receive a ballot or find voting in person easier that VBM for their individual reasons, should have an option of socially-distanced in-person voting.

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39. Other Texas laws could be waived to soften the effects of the sudden shift in election procedures and the dangers of COVID-19, for example, the statutes that limit when the Ballot Board may begin processing ballots. See e.g., TEX. ELEC. CODE § 87.0241. Coordination on when you can start scanning the ballots (not tabulating) would be helpful. Scanning means taking an image of the ballot to prepare for tabulation; tabulation means actually counting the ballots. Voters being able to effectively track their ballots, delaying certification deadline requirements because of increased mail, expanding voter registration deadlines, providing multiple formats for applications just to name a few issues that if addressed would improve Texas elections.
40. VBM does not eliminate public health concerns. I have been researching and consulting with epidemiologists and other public health experts. Workers processing ballots will still need personal protective equipment (“PPE”) and sanitation resources. With the April 28 commissioners court authorization, the County Clerk’s office in the process of procuring face shields, sanitizer stations, sneeze guards, stylus pens, and other PPE for July election. These items cost approximately $185,000. That funding has also enabled my office to purchase additional equipment to speed the processing of ballots. In addition, our office is engaging in a robust voter outreach campaign, collaborate with Harris County Public Health officials and other stakeholders, spreading out voters in the voting room and in lines, limiting people in the voting room, sanitizing everything a voter touches, and holding virtual meetings and trainings. In-person voting in a pandemic
41. I have begun collaborating with other elections administrators to develop methods of making in-person voting safer. For example, identifying polling locations where there is space to socially distance to ensure safety of poll workers and voters alike, not to mention poll watchers. Many of our current locations are cramped spaces in churches or nursing homes. Also, we must avoid vulnerable polling places such nursing homes, and Harris County historically uses many. For

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the upcoming elections we need to shift to large spaces such as gymnasiums. The days of going to small community-based polling locations are off the table because of COVID-19 as they do not have the space required to spread out. By consolidating to larger locations we will enable appropriate social distancing. The location sourcing may have to forego the traditional politically-driven allocation of polling locations.
42. Curbside voting offers little assistance to the pandemic problem, although it is a necessary element to any election to accommodate those voters who cannot walk inside the polling place and did not vote by mail. With Harris County’s voting system, each curbside voter takes at least 15 minutes because we must disconnect a unit from main system, take it to the voter, wait for the voter to vote, and then reconnect it. Because of the design of the Hart Intercivic e-Slate system Harris County currently uses, only certain, limited units can be used for curbside voting. Those same machines may be used for other voters, but the converse is not true. Our current machines would not enable full-time curbside voting; thus, wide-scale curbside voting is not an option for Harris County or perhaps any county given the extra time it takes. Because curbside voting is necessary for certain voters with disabilities, we may have to limit access to those specialized units to those voters.
43. Even then, necessary election processes will put voters and election workers at risk. For example, the handling and touching of equipment or of IDs or other paperwork handed by the voter to the poll worker pose a risk of transmission. When problems arise, there should be space for workers to discuss issues with voters at an appropriate distance.
44. More space, PPE, and sanitation resources are needed for disabled voters and for the devices that such voters use because these devices touch the body to enable them to vote.
45. Last minute changes to the process contributed to the mass confusion of the recent Wisconsin primary and public health dangers of voters congregating in long lines. In Wisconsin, at

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least 67 residents contracted COVID-19 after working at polls or voting in person although it is possible that some of those residents had previous exposure.3 That example should urge the Court to make a quick decision so that I and other elections administrators can properly plan for the July primary run-off and the November general election.
46. I have deep concerns for the safety of election workers. Harris County’s election workers’ average age is approximately 68 years old ¾ the very age bracket at highest risk of serious illness or fatalities with COVID-19. Of all Harris County election workers about two-thirds are over the age of 65. For in-person voting, workers must set up equipment before voters touch it, then again and after mass numbers of voters have touched the machines. Workers must pass identification cards and paperwork back and forth with voters.
47. The workers must be trained in election processes and now safety given COVID-19. While we are already working on virtual training not all our traditional workers will be able to participate. While a majority may have a computer, they may not be technically savvy enough to complete online training.
48. While recruiting younger, healthier poll workers may seem an attractive solution to the likelihood of traditional poll workers declining to participate due to fears for their health and safety, young people die of COVID-19 too. Moreover, recruiting new workers increases the need for more intensive training and leaves in-person voting locations with less experienced staff. Without increased VBM, we will not have the staff necessary to accommodate the volume of inperson voters.

3 David Wahlberg, 67 got COVID-19 after visiting polls in state’s April 7 election but tie to voting unclear, Wisc. State J., May 8, 2020, https://madison.com/wsj/news/local/health-med-fit/67-got-covid-19-after-visiting-polls-instates-april-7-election-but-tie-to/article_49a42a7e-45d8-50cc-bd76-3a583842de39.html.

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49. Early Voting has same issues as in-person but gives us more days to space out the voters. While Governor Abbott has just issued a proclamation4 increasing the time for in-person early voting by a week for the July 14 run-off, this increase does not help those voters who may be particularly susceptible to the pandemic and wish to VBM. Moreover, because July 3rd and 4th are federal holidays, early voting cannot be open those days. So the extended early voting will only add Monday, June 29 through, Thursday July 2, as well as Sunday July 5 which will be limited hours. In addition, staffing will have to be arranged for the extra days, and it remains to be seen whether enough workers will be willing and able. To conduct a successful and safe election and ensure that every eligible voter can vote, my office needs a variety of tools. Extended early voting helps, but it does not help those voters who have underlying health conditions or other reasons to avoid exposing themselves to the virus. Our polling places will still need to process at least 90,000 voters.
50. We also must prepare for contingencies such as an outbreak at a polling location or among election workers. Such contingency planning may raise issues with other legal constraints. Timing of Legal Answers and Lack of Cooperation
51. Planning an election in a pandemic is stressful enough and threats from the Texas
I Attorney General make it unduly stressful. On May 1, the Attorney General sent a memo to County
Judges and County Election Officials accompanied by a press release that singled out the Harris County Judge and County Clerk. See Ex. 5:
52. As noted, we must test processes before going into battle. While 90 to 120 days’ notice of legal or process changes is survivable, I very much prefer 180 days given my experience in planning and implementing elections for the past 20 years. For the July 14, 2020, runoff election,
4 See Governor Abbott Issues Proclamation Regarding July 14 Early Voting for Special, Runoff Elections, May 11, 2020, https://gov.texas.gov/news/post/governor-abbott-issues-proclamation-regarding-july-4th-early-voting-forspecial-runoff-elections.

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because it is a lower turn out election it will be easier for my office to adjust. But for voters who have already submitted their VBM application there will be no way for the voters to effectively know if the rules have changed. If election administrators are given legal flexibility such as offering VBM to all voters for the July 14, 2020 runoff election, then we will have invaluable data for planning for the November 2020 General Election should the pandemic continue or resurge. Given the size of the November election and uncertainties of the ebb and flow of the COVID-19 pandemic in Texas, I also need to know soon what tactics will be legally available so that we can plan and muster resources for a safe and fair election.
53. Since the Election Code considers as a “disability” qualifying a voter to vote by mail (“VBM”) whether there is a “likelihood” that appearing in person to vote will “injur[e] the voter’s health.” See TEX. ELEC. CODE § 82.002. I believe all voters who qualify under this provision should be able to early vote by mail. This is a relief because much like flattening the curve of the pandemic’s spread, by increasing the ratio of VBM voters to in-person voters we can flatten curve of mass numbers of voters congregating to enable adequate social distancing or avoid contact all together. Consequently, as we increase the ratio of voters who VBM, we will be closer to providing a safe and fair election.
54. As a county and a state we cannot conduct safe and fair elections without working together. It’s time for everyone to cooperate and chip in to safeguard our election workers and our voters, and not force voters to choose between their health and their vote. Executed in Harris County, State of Texas, on the 14th day of May, 2020.
Michael Winn

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Estimated Harris County, Texas, Racial Demographic Totals & Percentages
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ELECTORAL PROFILE OF HARRIS COUNTY, TEXAS
Table 1 – Estimated Harris County, Texas, Registered Voter (RV) Racial Demographic
Totals & Percentages

Demographic RV

% of RV

% of RV over % of RV RV under % of RV under 65

RV

65 over 65

65

under 65 for each

group

Countywide 2,368,761 100% 438,960 100% 1,929,801 100%

81%

Anglo

1,108,021 47% 226,484

52% 881,537

46%

80%

Latino

545,117 23% 65,029

15% 480,088

25%

88%

African American

596,627 25% 121,953

28%

25%

474,674

80%

Asian American

118,996 5% 25,494

6% 93,502

5% 79%

*Estimated registered voter population for Latinos and Asians is based on surnamed queries conducted on the 2020 March Harris County Voter Roll using Census Spanish and Asian surname lists.

*Estimated registered voter population for Anglos and African Americans was calculated by multiplying the total non-surnamed registered voter population on the 2020 March Harris County Voter Roll by the Anglos Alone and African American percent of Harris County's Citizen Voting Age Population according to 2013-2017 American Community Survey.

*Estimated population over 65 years of age for Latinos and Asians is based on surnamed queries of the 2020 March Harris County Voter Roll

*Estimated registered voter population for Anglos and African Americans was calculated by multiplying the total non-surnamed 65 years and older registered voter population on the 2020 March Harris County Voter Roll by the Anglos Alone and African American percent of Harris County's Citizen Voting Age Population according to 2013-2017 American Community Survey.

App. 19

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 20 of 61 Exhibit 2: Harris County Commissioner’s Court, Order, Apr. 28, 2020; Harris County
Clerk, COVID-19 Agenda Item, Apr. 20, 2020
-\ App. 20

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 21 of 61

ORDER OF COMMISSIONERS COURT Authorizing the County Clerk to Spend Up to Twelve Million Dollars to Prepare for Elections

The Commissioners Court of Harris County, Texas, convened at a meeting of the Court, virtually, on April 28, 2020 with all members present.

A quorum was present. Among other business, the following was transacted:

AUTHORIZING THE COUNTY CLERK TO SPEND UP TO TWELVE MILLION DOLLARS TO PREPARE FOR THE JULY 2020 AND NOVEMBER 2020 ELECTIONS
IN ANTICIPATION OF EXPANDED REQUESTS FROM VOTERS FOR MAIL IN BALLOTS AND IMPLEMENTATION OF PUBLIC HEALTH SAFETY
PROTOCOLS FOR IN PERSON VOTING IN RESPONSE TO COVID-19 AND TO RETURN TO COMMISSIONERS COURT WITH A PLAN

Commissioner Ellis introduced an order and made a motion that the same be adopted. Commissioner Garcia seconded the motion. The motion, carrying with it the adoption of the order, prevailed by the following vote:

Judge Lina Hidalgo Comm. Rodney Ellis Comm. Adrian Garcia Comm. Steve Radack Comm. R. Jack Cagle

Yes No X X X
X X

Abstain

The County Judge thereupon announced that the motion had duly and lawfully carried and that the order had been duly and lawfully adopted. The order thus adopted follows:

IT IS ORDERED that:

1. The County Clerk is authorized to spend up to Twelve Million Dollars to prepare for the July 2020 and November 2020 elections in anticipation of expanded requests from voters for mail in ballots and implementation of public health safety protocols for in person voting in response to COVID-19 and to return to Commissioners Court with a plan.

2. All Harris County officials and employees are authorized to do any and all things necessary or convenient to accomplish the purpose of this Order.
Presented to Commissioners Court
April 28, 2020

Approve: E/G

App. 21

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 22 of 61

April 20, 2020

COVID-19 AGENDA ITEM
Honorable Judge and Commissioners Court 1001 Preston, 9th Floor Houston, Texas 77002

Judge Lina Hidalgo Comm. Rodney Ellis Comm. Adrian Garcia Comm. Steve Radack Comm. R. Jack Cagle

*See Attached Order

YES

NO

~

□

~

□

~

□

□

~

□

~

ABSTAIN
□ □ □ □ □

RE: Cost Estimate for an Expanded Mail Ballot Program

Dear Court Members:

This letter is a request to report under COVID-19 agenda items on Tuesday, April 28, 2020 Commissioners Court on potential expansion for voting by mail due to COVID-19 including a review of budget requirements for such a program.

Respectfully submitted for your approval,

Diane Trautman County Clerk, Harris County, Texas
DT/nt/ec
Attachment

Presented to Commissioners Court
April 28, 2020
Approve: E/G
*See Attached Order

App. 22

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 23 of 61
Cost Estimate for an Expanded Mail Ballot Program
This is to report on pending litigation matters and potential expansion for voting by mail due to COVID19 including a review of budget requirements for such a program. In preparation for the upcoming July and November elections, my team and I have held virtual meetings collaborating with community groups, the U.S. Elections Assistance Commission, the Bipartisan Policy Center, the Brennan Center for Justice, various Harris County stakeholders, Harris County Attorney’s Office, Rice University, both political parties, and have joined a 20 county coalition that meets virtually with the Secretary of State every other week. We are looking at a variety of best election practices to ensure that we are prepared to run a safe, secure, and compliant election in July and November.
I. Legal Update On March 20, 2020, the Texas Democratic Party filed a lawsuit in the District Court of Travis County asking for declaratory judgment that any eligible voter in the State of Texas should be able to request a mail ballot due the threat to the health of the voter if voting in person. On April 17, 2020, the Judge issued a temporary injunction allowing voters to request a mail ballot based on COVID-19 fears. Further, the order enjoins Travis County and the State of Texas from refusing any application for a ballot by mail from anyone due to the COVID-19 crisis and would likely also enjoin our office from refusing to process any mail ballot submitted by anyone based on the COVID crisis. On April 20, the State filed its appeal in the Austin Court of Appeals. On April 14, 2020, the Attorney General’s Office issued an informal letter of legal advice concluding that “fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code.” See Informal Letter of Legal Advice.
On April 6, 2020 the Texas Democratic Party filed a lawsuit in the United States District Court in San Antonio asking for declaratory judgement under the state claim. The federal pleading alleged potential counts of violation under the United States Constitution and the Voting Rights Act (VRA).
II. Cost Estimate for an Expanded Mail Ballot Program
The County Clerk’s Office is preparing to scale up the mail program and now are providing the Court a cost estimate list of items in order to expand the vote by mail program for the July 14, 2020 primary runoff election with the early voting period from July 6-10.
Our perspective will be to look at conducting the election with regards to expanding the mail program based on processing approximately 2 million, 1.2 million, and 600,000 mail voters. We realize we will still continue to conduct in person voting, but an expanded mail program will increase our ballot cost from $4.60 - $7.73 per ballot cost. The expansion will require an additional 12 million dollars for 2 million voters, 8 million dollars for 1.2 million voters, and 3 million dollars for 700,000 voters. We will continue to work with the Office of Budget Management to confirm cost estimates.
App. 23

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 24 of 61
In addition our office is engaged in and continues to:  Engage in a robust Voter Outreach campaign  Collaborate with Harris County Public Health officials and other stakeholders  Encourage eligible voters to vote by mail  Expand vote by mail infrastructure  Request policy changes  Provide multiple formats to request vote by mail  Use larger polling locations  Avoid using vulnerable polling places such as senior community centers  Spread out voters in the voting room and in the lines  Limit people in the voting room  Sanitize everything a voter touches  Hold virtual meetings and training  Recruit poll workers who are not at risk
Our goal is to ensure a safe, secure, and accessible election and to do everything in the County Clerk’s authority to accomplish this.
Diane Trautman County Clerk, Harris County, Texas
App. 24

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 25 of 61 Exhibit 3: Key Dates Calendar July Run-Off
-\ App. 25

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 26 of 61 Exhibit 3: Key Dates Calendar July Run-Off

Dates KEY DATES - JULY 14, 2020 PRIMARY RUNOFF ELECTIONS

4/30/20 Deadline for parties to approve polling places

HC

5/15/20

Last day for the County Chair of each political party to appoint PJ/AJ for each PCT - 60th day prior to Runoff ED

SOS

Deadline to Post & Publish L&A Notices for Primary Runoff Elections (Notice

of the public tests must be published at least 48 hours before the test begins.

5/18/20

The notice must be posted on the county’s website if the county maintains a website. For the Primary Elections, the CCO must notify the county chair of

HC

the test 48 hours prior to the test. The county chair must confirm receipt of

the notice. [Secs. 127.093, 127.096, 129.022, 129.023]. )

5/19/20 Mandatory ballot proofing process for Candidates and Parties ETC.

HC

Logic and Accuracy (L&A) Test for Primary Elections begins at 9:00 a.m., at ETC, 5/20/19 . Harris County will post and publish notice for L&A (Secs. 127.093; 127.096; HC
129.022; 129.023)

BBM Mailing begin - Deadline to mail ballots to military and overseas voters (If 5/30/20 the clerk cannot meet this 45th Day deadline, the clerk must notify Secretary SOS
of State within 24 hours ) (Sec. 86.004)- 45th day prior to Runoff ED

6/5/20 Last day to finish the EV posters with locations

HC

If the SVC will start meeting on Wed, 6/24/20, recommended date EV clerks

6/12/20 should post copy of the order calling for appointment of SVC. 32nd day prior SOS to Runoff ED

6/15/20

Last day to register to vote on the Primary Runoff Elections (Secs. 13.143, 15.025) - 30th day prior to Runoff ED

SOS

6/16/20 EV deadline for PJ submissions - 29th day prior to Runoff ED

HC

6/23/20

Last day for posting Notice of Primary Runoff Election on website & bulletin board (Secs. 4.003 & 172.1112). - 21st day prior to Runoff ED

SOS

6/24/20 EV & ED training to begin

HC

6/24/20 Deadline for PJ emergency period 20th day prior to Runoff ED

HC

6/29/20

Deadline to notify PJs of duty to hold eletion (Writ of Election) 15th day prior to Runoff ED

SOS

6/29/20- Early Voting: 6/29-7/02: 7:00am-7:00pm, closed Friday, July 3rd - Saturday, 7/10/20 July 4th, Sunday, July 5th: 10am-7pm; 7/06-7/10: 7:00am-7:00pm

SOS

7/2/20

Last day to accept hand-delivered applications by voter - 13th day prior to Runoff ED; due to July 4th Holiday

SOS

7/2/20

Last day to apply for BBM (received, not postmarked) - 13th day prior to Runoff ED; due to July 4th Holiday

SOS

7/2/20 First day EVBB may convene - 13th day prior to Runoff ED

SOS

7/2/20

Deadline to post Central Count Station Plan - at least 10 days before Runoff ED

HC

App. 26

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 27 of 61 Exhibit 3: Key Dates Calendar July Run-Off

Posting L&A Notice for ED. The public notice of the test of automatic tabulating equipment must be published at least 48 hours before the test 7/10/20 begins. Additionally, for a primary election, the CCO must notify the county HC chair of the test 48 hours prior to the test. The county chair is required to confirm receipt of the notice. (Sec. 127.096). - 4th day prior to Runoff ED.

7/14/20 PRIMARY RUNOFF ELECTION DAY

SOS

7/20/20

Last day to receive ballots from military and non-military voters casting ballots from outside of US - 6th day after ED

SOS

7/20/20 Deadline to cure provisional ballots - 6th day after ED

SOS

7/23/20 Deadline for county chair to canvass

App. 27

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 28 of 61 Exhibit 4: Texas Secretary of State, Advisory 2020-14-COVID-19 (Coronavirus) Voting
and Election Procedures, April 2, 2020 (SOS COVID-19 Advisory)
-\ App. 28

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 29 of 61

ELECTION ADVISORY N0. 2020-14

TO:

Election Officials

FROM: Keith Ingram, Director of Elections

DATE: April 2, 2020

RE:

COVID-19 (Coronavirus) Voting and Election Procedures

The purpose of this advisory is to assist election officials in facilitating voting for individuals that may be affected by COVID-19, and in preparing for the conduct of elections in the context of this public health issue.

Voter Registration Procedures

Stay-at-home orders and office closures in your jurisdiction may impact voters seeking to obtain voter registration applications. There are several existing options that you should encourage voters to utilize:

 In-County Updates via Texas Online: If a voter has moved within the same county, the voter may update their address online at www.Texas.gov. Voters that are active or in suspense can update their name and/or residence address through this secure website.
 Printed Voter Registration Applications: If a voter has access to a printer, the voter can use the SOS Informal Online Application to complete a voter registration application. This application can be printed and mailed to the applicable county voter registrar. When the voter selects their county of residence, it will preprint the county voter registrar’s address on the form so that when the voter mails it, they send it directly to their county voter registrar.
 Postage-Paid Voter Registration Applications: If a voter does not have access to a printer, the voter can request that a blank postage-paid voter registration application be mailed directly to the voter. The voter can fill out the request form on the SOS website. Counties can also mail blank applications to voters upon request.
 Revisions to Voter Registration Certificate: If a voter has their current voter registration certificate, they may make any necessary corrections or updates to the certificate, sign it and return it to the voter registrar.

App. 29

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 30 of 61
 Register2Vote.org: This is a third-party website that provides a remote printing option for voters. Voters can complete a form online and have a pre-filled application sent to them for completion. The voter must complete the form, sign it, and mail it in the included postagepaid envelope. This form is sent directly to the county voter registrar.
Voting Procedures Authorized under the Texas Election Code
Below we have described some of the procedures that are authorized under Texas law that may be of assistance to voters that are affected by a recent sickness or a physical disability. Voting by Mail In Texas, in order to vote by mail, a voter must have a qualifying reason. A voter may vote early by mail if they:
 will be away from their county on Election Day and during early voting;  are sick or disabled;  are 65 years of age or older on Election Day; or  are confined in jail, but eligible to vote.
One of the grounds for voting by mail is disability. The Election Code defines “disability” to include “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” (Sec. 82.002). Voters who meet this definition and wish to vote a ballot by mail must submit an application for ballot by mail.
 Application for a Ballot by Mail.
Chapter 102, Late Voting Due to Recent Sickness or Physical Disability The Election Code authorizes late voting if a voter becomes sick or disabled on or after the day before the last day for submitting an application for a ballot to be voted by mail, and is unable to go to the polling place on Election Day. The voter must designate a representative to submit an application on the voter’s behalf in person to the early voting clerk. To be eligible to serve as a voter’s representative, a person: 1) must be at least 18 years of age; 2) must not be employed by or related within the third degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to a candidate whose name appears on the ballot; and 3) must not have served in the election as the representative for another applicant. The application must be received before 5:00 p.m. on Election Day. The application is reviewed and the early voting clerk verifies the applicant’s registration status in the same manner as early voting by mail. The early voting clerk must provide the same balloting materials that are used for early voting by mail to the representative who will deliver them to the voter. The voter should mark and seal the ballot in the same manner as voting by mail including signing the back flap of the carrier envelope. The ballot must be returned in its carrier envelope to the early voting clerk before 7:00 p.m. on Election Day by the same representative who delivered the ballot to the voter.
 Application for Emergency Early Voting Ballot Due to Sickness or Physical Disability  Instructions for Voter to include with Balloting Materials
App. 30

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 31 of 61
Chapter 104, Voting at Main Early Voting Location The Election Code authorizes voters who are sick or disabled to vote on Election Day at the main early voting place, so long as voting machines of some type are used in the voter’s precinct and the voter’s sickness or disability prevents the voter from voting in the regular manner without personal assistance or likelihood of injury. For this procedure, the voter must complete and submit the applicable affidavit to be provided with the balloting materials used for early voting by mail. The voter must mark and seal the ballot in the same manner as in early voting by mail, except that the certificate on the carrier envelope need not be completed. After sealing the carrier envelope, the voter must give it to the clerk at the main early voting polling place between the hours of 7:00 a.m. and 7:00 p.m. The Early Voting Clerk must note on the envelope that the ballot was voted under Chapter 104.
 Affidavit for Voting at Early Voting Place on Election Day
Curbside Voting If a voter is physically unable to enter the polling place without assistance or likelihood of injury to his or her health, the voter is eligible for entrance or curbside voting. (Sec. 64.009). This option must be made available at all polling locations. To provide for voting curbside, the voter must be qualified by the election officer before the voter can receive the ballot. An election officer may deliver a ballot or a DRE voting machine to the voter at the entrance or curb of the polling place. Poll watchers and inspectors must be allowed to accompany the election officer. Once the voter has marked his or her ballot, the election officer deposits the ballot for the voter. On the voter’s request, a person accompanying the voter to the polling place must be permitted to select the voter’s ballot and to deposit the ballot in the ballot box after the voter has voted. If the voter is not only physically unable to enter the polling place, but is also eligible for voter assistance in marking his or her ballot, they may receive assistance in marking and completing their ballot in accordance with Chapter 64, Subchapter B of the Election Code. Either two election officers may assist the voter or the voter may be given assistance by a person of the voter’s choice, other than the voter’s employer, an agent of that employer or an officer or agent of the voter’s labor union. For voters that are voting at the curbside, instruct polling place workers to allow the curbside voter the same privacy as a voter in the voting booth. We anticipate providing further guidance regarding curbside voting in the coming weeks.
Potential Court Order to Address Quarantined Voters
Voting in-person during early voting or on Election Day may not be an available option for all voters, including those affected by quarantines. Political subdivisions may need to act quickly to address the rapidly changing public health situation. In monitoring your situations locally, it is important to note that you may have a need to modify certain voting procedures. In these circumstances, you may want to consider seeking a court order to authorize exceptions to the voting procedures outlined in certain chapters of the Texas Election Code for these voters. The following are possible considerations:
1. Expanding Eligibility Requirements Under Chapter 102 (Late Voting for Sickness or Physical Disability): A court order could provide for a temporary expansion of the eligibility requirements for Chapter 102 voting to allow voters in quarantine to vote in this fashion. This option would also require the court, in some instances, to temporarily waive or modify the
App. 31

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 32 of 61
requirement for a physician’s signature on the application for this type of late ballot for purposes of any election(s) impacted by COVID-19. 2. Other Modifications to Voting Procedures: A court order could provide for modifications to other voting procedures as necessary to address the impact of COVID-19 within the jurisdiction. For example, in 2014, Dallas County obtained a court order authorizing modified voting procedures for individuals affected by the Ebola quarantine, modeled on the procedures outlined in Section 105.004 of the Texas Election Code for certain military voters in hostile fire pay zones.
If your county obtains a court order allowing modifications to voting procedures to address COVID-19, please send a copy of the court order to the Secretary of State’s Office.
Other Considerations Related to COVID-19 or Other Illnesses
If your political subdivision is affected by a stay-at-home order, quarantine or outbreak of COVID19 or any other type of illness, the conduct of your elections could be impacted. In order to protect the health and safety of election workers, below are some considerations:
 Cleaning and Sanitizing Voting System Equipment: o Voting System and e-Pollbook Equipment: Please check with your vendor about the specific procedures you should follow to clean and sanitize any equipment that is handled by voters or polling place workers. We received specific information from the following vendors about proper techniques for cleaning equipment:  Hart Intercivic Voting System Equipment: Users may wipe Hart equipment with 50% or higher clear, fragrance-free, isopropyl alcohol solution and a lint-free wipe. Do not use ammonia or detergent-based solutions as these may be harmful to the screen or the plastics surrounding the display. To avoid spotting, make certain that equipment screens are wiped dry (do not leave puddles).  ES&S Voting System Equipment: You can use a soft, line free cloth and isopropyl alcohol to clean the touchscreen of the voting machine. Do not spray directly on the touch screen. Only lightly dampen the cloth, do not soak it. Do not use any harsh cleaning products on the screen as this may damage the touch screen. Do not allow any liquid cleaner to come in contact with ballot stock.
 Cleaning and Sanitizing Polling Places: The Centers for Disease Control and Prevention (CDC) has issued recommendations for preventing the spread of coronavirus specifically in election polling locations. Here are a few of their specific suggestions: o Encourage workers to wash hands frequently: wash hands often with soap and water for at least 20 seconds. If soap and water are not readily available, use an alcohol-based hand sanitizer that contains at least 60% alcohol. o Practice routine cleaning of frequently touched surfaces with household cleaning spray or wipe: including tables, doorknobs, light switches, handles, desks, toilets, faucets, sinks, etc.
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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 33 of 61
o Disinfect surfaces that may be contaminated with germs after cleaning: A list of products with EPA-approved emerging viral pathogens claims is available on the EPA’s website. Products with EPA-approved emerging viral pathogens claims are expected to be effective against the virus that causes COVID-19 based on data for harder to kill viruses. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, use of personal protective equipment).
 Arrangement of Polling Places: It is imperative that you review your procedures related to setting up your polling place. Voting stations should be set up in a way that adheres to the suggested social and physical distance guidelines and allow for at least 6 feet between voters. Additionally, you should review your check-in stations to ensure you are providing adequate space between voters. This may include providing your workers with tape to mark off spacing guidelines on the floor of the polling place.
 Election Judges and Clerks: o Training and Recruiting of Election Workers:  Recruitment of Election Workers: We recommend that you make efforts to recruit and train additional workers beyond what you project to need for a given election. This will ensure that you have adequate back up workers to assist in the event that you have election workers that are unavailable at the last minute. • Recruiting from Current Workers: With regard to recruiting workers, you may want to ask your current appointed judges to provide recommendations of other individuals that can serve. Additionally, you may have different judges and clerks depending on the type of election you hold. We suggest you reach out to your entire pool of potential workers to determine availability for 2020 election dates. • Student Election Clerks: You may also want to consider enlisting student election clerks in your pool of available workers. For elections occurring outside of the school year, the student clerks would not need to obtain permission from their high school principal provided they obtained permission from their parent or legal guardian.  Training of Election Workers: In order to train a larger pool of workers, you may want to consider allowing your election workers to utilize the Secretary of State’s online Poll Worker Training. This training is focused on the legal procedures related to acceptance of voters and the voting process. Any procedures that are specific to your county would need to be provided through additional training or supplemental materials.
o Unavailability of Judges: If both the presiding judge and alternate judge are unavailable to serve and this is discovered after the 20th day before election day, the presiding officer of the appointing authority, or if the presiding officer is unavailable, the authority responsible for distributing supplies for the election, shall appoint a replacement judge. (Sec. 32.007). Additionally, if the authority is
App. 33

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 34 of 61

unable to find an election judge who is a qualified voter of the specific precinct needing a judge, the authority may appoint individuals that meet the eligibility requirements of an election clerk which encompasses a broader territory. (Sec 32.051(b)).

Type of Election

Presiding Officer of

Authority responsible

Appointing Authority for Delivering Supplies

Primary Election

County Chair of Political Party

County Chair of Political Party

Joint Primary
General Election for State and County Officers or County Ordered Election

County Election Officer County Judge

County Election Officer County Election Officer

Cities
Other Political Subdivision Elections

Mayor
Presiding Officer of Governing Body of Political Subdivision

City Secretary
Secretary of Governing Body; if no secretary, the presiding officer of governing body

 Polling Locations: o Review List of Locations: We recommend reviewing your list of current polling locations to determine if you should consider proactively relocating them. For example, if you are currently using assisted living facilities or residential care facilities that have residents that would be in one of the higher-risk categories, relocating the polling place may be in the best interest of the individuals at that location. Please be advised that if you choose to relocate a polling place in a facility like this, we strongly recommend that you provide information to the residents about voting by mail to ensure that they are still able to vote in upcoming elections without the difficulty of leaving the facility to travel to a different polling place. Additionally, you should be monitoring your current polling places to determine if any of those locations have been closed as a result of business or government building closures. o Unavailable Locations: If polling locations become unavailable, you may need to relocate your polling location or combine and consolidate that location with another polling place in close proximity to it. To the extent possible, any changes to polling locations must be made in accordance with Chapters 42 and 43 of the Texas Election Code. If you are in a situation where you will have difficulty complying with these chapters, please contact the Secretary of State’s office to discuss other available options.

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 35 of 61
▪ Notice of Changes to Polling Locations: Please be advised that if you have a polling location change, you must post notice of that change at the location that is no longer being used. Any websites that contain polling locations should be updated. For certain county-run elections, polling place information must also be updated with the Secretary of State’s office, if applicable.
o Website Notices: At this time, you may want to consider posting a notice on your website instructing voters to check your website for updates and changes to polling locations prior to early voting and election day. This will help ensure that voters are always getting updated and accurate information.
 Voting by Mail Considerations: At this time, the CDC has not provided any special recommendations or precautions for the storage of ballots. However, it is recommended that workers handling mail ballots practice hand hygiene frequently. Please continue to stay updated on the CDC’s website as they provide additional recommendations regarding the handling of mail and other topics. o Additional Ballot by Mail Supplies: Because there may be a higher volume of ballot by mail requests in 2020, we strongly recommend that you review your current supply of applications, balloting materials, and ballot stock for future elections. It is important you have the necessary supply on hand to meet increased requests you may receive.
 Election Office Hours: Election officials are required to maintain certain office hours related to their election duties for a prescribed number of days before and after an election. If your office is closed for public health reasons or you are unable to be at your office during the mandatory office hour time frame, we advise that entities post information on how to get in contact with the applicable officials for election related information. This may include posting phone numbers, an email address that can receive public inquiries, or even a mailing address that can receive written requests for information. We recommend that you assign someone to periodically check for voicemails, emails, or mail related to your election.
 Voter Registration Office Hours: Section 12.004(c) requires the voter registrar’s office to be open while the polls are open on the date of any election held in the county on a uniform election date. If you have entities that will be holding an election on May 2, 2020, you must satisfy this requirement. However, we believe that as long as you can provide answers to voter registration questions remotely and you notify your entities about how to reach you, you do not need to be physically in the office. You must also be able to provide all of the same voter registration services you would otherwise provide to your local political subdivisions if you were in the office.
 Volunteer Deputy Registrars (VDR): You still have a legal obligation to process volunteer deputy registrar applications. If you must suspend volunteer deputy registrar classes, we strongly advise that you adopt the SOS online Volunteer Deputy Registrar training and in-person examination option. This would allow you to schedule the examinations based on need or desire by VDRs and would allow you to temporarily reduce or cancel in-person training as dictated by your county’s circumstances. For more information about adopting the online training and examination, please see Advisory 2019-04. Additionally, you still have an obligation to receive voter registration
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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 36 of 61
applications from VDRs. To eliminate person-to-person contact, you could provide drop boxes for voter registration applications. These drop boxes should be located in close proximity to your main office or connected to it. They should be secured and checked regularly.  Cybersecurity Impacts: If your political subdivision is affected by a widespread quarantine or outbreak of COVID-19 or any other type of illness, your office staff might be mandated to work remotely. In addition, the volume of voters that will start to utilize your internet-based resources will increase. During a crisis situation, bad actors may try to capitalize on the circumstances to take actions that could compromise the security of your elections office. Please remain vigilant about following best practices related to cybersecurity and election security.
o Service Interruption: Networks are normally built to sustain high volume traffic, but the magnitude of the COVID-19 crisis presents an increased risk that systems may become compromised. An abnormal increase in network traffic could be misinterpreted as a DOS (Denial of Service) attack which could shut down networks depending on the type of security implementation.
o Ransomware: Cybercriminals can infect the computers of government agencies before demanding that they pay a ransom for an encryption key that will free their locked files and records. Ransomware can lock up databases preventing polling places from verifying eligibility and confirming that voters are in the right districts/precincts.
o Election Systems and e-Pollbook Equipment: As mentioned above, databases are susceptible because they must have a constant network connectivity. When relocating polling places, it is very important to ensure that the systems are connected to a secure and reliable network.
o Voter Registration Scams: Voter registration procedures are not conducted over the phone or the internet other than the previously mentioned authorized channels. Be aware of scams that are targeted to steal personally identifiable information from voters and/or election workers. It is especially important not to provide personal information of voters or election workers over the phone if your office is solicited in this manner.
 Communications Plan: You should develop a plan for communicating to voters and election workers when any changes occur that may impact them. The communications plan should involve updating your official website with specific details. Any use of social media should direct people back to your official website to ensure that only official, accurate, and authorized information is being disseminated to the public. We suggest you develop a plan for working with local media to keep the public informed. Finally, any major changes that affect the election process in your county should be communicated to the Secretary of State’s office.
Additional Resources
Here are a list of additional resources that may be helpful to you.  Election Assistance Commission - Coronavirus (COVID-19) Resources.
App. 36

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 37 of 61  Centers for Disease Control and Prevention (CDC) – Recommendations for Election Polling
Locations  Texas Department of State Health Services – Coronavirus Disease 2019 (COVID-19) If you have any questions regarding this advisory, please contact the Elections Division at 1-800252-2216. KI:CA
App. 37

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 38 of 61
Exhibit 5: AG Paxton Advises County Officials to Avoid Misleading the Public on Vote by Mail Laws, May 1, 2020, available at https://www.texasattorneygeneral.gov/news/-
releases/ag-paxton-advises-county-officials-avoid-misleading-public-vote-mail-laws; Ken Paxton, Memo to County Judges and County Election Officials, May 1, 2020
.
\
App. 38

AG Paxton Advises CountyCOfaficsieals5to:2Av0o-idcMvi-s0le0ad4in3g8th-eFPBublicDoon VcoutembyeMnatil6L6aw-s1| OfFficileeodf th0e5A/t1to4rn/e2y0GenPeraal ge 39 of 61

5/9/20, 4)32 PM

KEN PAXTON

ATTORNEY GENERAL of TEXAS

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HOME (/) > NEWS (/NEWS) > NEWS RELEASES (/NEWS/RELEASES) > AG PAXTON ADVISES COUNTY OFFICIALS TO AVOID MISLEADING THE PUBLIC ON VOTE BY MAIL LAWS

May 01, 2020 | Press Release
AG Pax​ton Advis​es Coun​ty Offi​cials to Avoid Mis​lead​ing the Pub​lic on Vote by Mail Laws

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Attorney General Ken Paxton today issued a letter to Texas county judges and election ofﬁcials, providing guidance that, under the Texas Election Code, Texans may not claim disability based on fears of contracting

https://www.texasattorneygeneral.gov/news/releases/ag-paxton-advises-c…-officials-avoid-misleading-public-vote-mail-laws#.Xqx7sljBipY.twitter
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COVID-19 and receive a ballot to vote by mail in upcoming elections. Several county ofﬁcials throughout the State, including the Harris County judge and clerk, are misleading the public about their ability to vote by mail, telling citizens that in light of COVID-19, anyone can claim a “disability” that makes them eligible for ballot by mail.
Disability, as that term is used in the Texas Election Code’s provisions allowing voting by mail, must involve a “sickness or physical condition” that prevents a voter from voting in person on election day without a likelihood of needing personal assistance or of injuring the voter’s health. A voter ill with COVID-19 and who meets those requirements may apply for a ballot by mail. Fear of contracting COVID19, however, is a normal emotional reaction to the current pandemic and does not amount to an actual disability that qualiﬁes a voter to receive a ballot by mail.

5/9/20, 4)32 PM

“Mail ballots based on disability are speciﬁcally reserved for those who are legitimately ill and cannot vote in-person without assistance or jeopardizing their health. The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently,” said Attorney General Paxton. “My ofﬁce will continue to defend the integrity of Texas’s election laws.”
The lawsuit recently ﬁled in Travis County District Court does not change or suspend the disability requirements required by the Texas Legislature. Pursuant to Texas law, the District Court’s order is stayed and has no effect during the ongoing appeal.
Read a copy of the letter here (https://www.texasattorneygeneral.gov/sites/default/ﬁles/images/admin/2020/Press/Mailin%20Ballot%20Guidance%20Letter_05012020.pdf ).

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 42 of 61

May 1, 2020

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

To: County Judges and County Election Officials

Re: Ballot by Mail Based on Disability

Due to misreporting and public confusion, the Texas Attorney General provides this guidance addressing whether a qualified voter, who wishes to avoid voting in-person because the voter fears contracting COVID-19, may claim a disability entitling the voter to receive a ballot by mail regardless of whether the voter would need personal assistance to vote in-person or risk injuring their health because of a sickness or physical condition. Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail. Accordingly, public officials shall not advise voters who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19.

The Election Code establishes specific eligibility requirements to obtain a ballot by mail for early voting. TEX. ELEC. CODE §§ 82.001–.004. While any qualified voter is eligible to early vote by personal appearance, the Legislature has limited access to early voting by mail for individuals who meet specific qualifications. Section 82.002 of the Election Code, titled “Disability,” allows a qualified voter to early vote by mail “if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” See id. § 82.002(a). Thus, a voter has a disability under this section and, therefore, is eligible to receive a ballot by mail if:

(1) the voter has a sickness or physical condition; and (2) the sickness or physical condition prevents the voter from appearing in-person
without: (a) needing personal assistance; or (b) injuring the voter’s health.

Only a qualifying sickness or physical condition satisfies the requirements of section 82.002. The Election Code does not define “sickness” or “physical condition.”1 The

1 Our objective in construing a statute is to give effect to the Legislature’s intent, which requires us to examine the statute’s plain language. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). In determining the plain meaning of undefined words in a statute, we consult dictionary definitions. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018); see Tex. Att’y Gen. Op. KP-

App. 42

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 43 of 61
common understanding of the term “sickness” is “the state of being ill” or “having a particular type of illness or disease.” NEW OXFORD AM. DICTIONARY 1623 (3d ed. 2010).2 A person ill with COVID-19 would certainly qualify as having a sickness. However, a reasonable fear of contracting the virus is a normal emotional reaction to the current pandemic and does not, by itself, amount to a “sickness,” much less the type of sickness that qualifies a voter to receive a ballot by mail under Election Code section 82.002.
In addition to “sickness,” the Election Code allows voters to vote by mail if they have a “physical condition” that prevents them from appearing at the polling place without assistance or without injury to their health. TEX. ELEC. CODE § 82.002(a). “Physical” is defined as “of or relating to the body as opposed to the mind.” NEW OXFORD AM. DICTIONARY 1341 (3d ed. 2010). “Condition” is defined as “an illness or other medical problem.” Id. at 362. Combining the two words, a physical condition is an illness or medical problem relating to the body as opposed to the mind. To the extent that a fear of contracting COVID-19, without more, could be described as a condition, it would at most amount to an emotional condition and not a physical condition as required by the Election Code to vote by mail. Thus, under the specifications established by the Legislature in section 82.002 of the Election Code, an individual’s fear of contracting COVID-19 is not, by itself, sufficient to meet the definition of disability for purposes of eligibility to receive a ballot by mail.
To the extent third parties advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, including fear of contracting COVID-19 without an accompanying qualifying disability, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041. TEX. ELEC. CODE § 84.0041 (providing that a person commits an offense if the person “intentionally causes false information to be provided on an application for ballot by mail”); see also id. § 276.013 (a person commits election fraud if the person knowingly or intentionally causes a ballot to be obtained under false pretenses, or a misleading statement to be provided on an application for ballot by mail). However, whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.
A lawsuit recently filed in Travis County District Court does not change or suspend these requirements. In that case, the District Court ordered the Travis County Clerk to accept mail ballot applications from voters who claim disability based on the COVID-19 pandemic, and to tabulate mail ballots received from those voters. The Texas Attorney General immediately appealed that order. Accordingly, pursuant to Texas law, the District Court’s order is stayed and has no effect during the appeal. Moreover, even if the order were effective, it would not apply to any county
0009 (2015) (concluding that to be able to vote by mail, a voter must satisfy the standard of disability established under section 82.002, and that standards of disability set in other unrelated statutes are not determinative).
2 See also Tex. Att’y Gen. Op. KP-0149 (2017) (noting that a behavioral abnormality of a sexually violent predator sufficient to result in civil commitment qualifies as a sickness, understood as an “unsound condition” or disease of the mind, under section 82.002(a)).
App. 43

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 44 of 61 clerk or election official outside of Travis County. Those officials must continue to follow Texas law, as described in this letter, concerning eligibility for voting by mail ballot.
Sincerely, KEN PAXTON Attorney General of Texas
App. 44

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 45 of 61
DECLARATION OF ROBERT STEIN, PROFESSOR OF POLITICAL SCIENCE, RICE UNIVERSITY
“I declare under penalty of perjury that the foregoing is true and correct: 1. My name is Robert Stein. I am the Lena Gohman Fox Professor of Political
Science, a fellow in urban politics at its Baker Institute for Public Policy, and the Faculty Director of its Center for Civil Leadership. The National Science Foundation, Pew Charitable Trusts and the Arnold Foundation have supported my research on voting and election administration. I was on the research staff of the Carter-Baker Commission on Federal Election Reform (2005) with specific responsibility for evaluating early voting and Election Day vote center practices. In 2012 I conducted research for the Presidential Commission on Election Administration on election administration during natural disasters and emergencies. The Harris County Clerk’s office has cooperated with this research by providing me and my colleagues with data for our research.
2. As part of continuing study of voting behavior, researchers at Rice University, including myself and Professors Claudia Acemyan, Philip Kortum, Elizabeth Vann and Dan Wallach surveyed Harris County voters and poll workers about polling place practices for the 2020 Presidential election during the current Coronavirus pandemic. On-line Interviews were completed by 1,800 poll workers between March 27 and May 4, 2020. During the same period, 1,000 live telephone interviews with registered voters in Harris County were completed. A true and correct copy of our report is attached to this declaration, titled “2020 Harris County Voter and Poll Worker Survey.”
3. Poll workers and voters were asked about their preferences respectively for eight and five actions that that might be taken at polling locations during the November 2020 Presidential election. Major findings from the study are as follows.

Declaration of Prof. Robert Stein – Page 1 of 4

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 46 of 61
4. Poll workers in Harris County show little reticence to work the polls in November. This is true in spite of a continued threat from the Coronavirus. However, poll workers’ willingness to work the polls comes with some conditions:
a. More than three-fourths of all poll workers surveyed are somewhat or very likely to work at the polls in November when they are provided personal protective equipment, sanitized gloves, Plexiglas screens, distancing requirements and one person voting at a time.
b. Nearly a third (29%) of poll workers were very unlikely to work at the polls if only normal polling operations were in place i.e., no social distancing and/or other protective measures taken.
5. Voters in Harris County are reluctant to vote in the November’s election without steps taken to protect themselves and other voters from contracting COVID-19.
6. When asked, “If the Presidential election were being held this week, how likely would you be to vote in the election if you could cast your ballot by mail,” 69% of Harris County voters responded very or somewhat more likely to vote in the November election by mail.
7. 80% of Harris County voters are very or somewhat more likely to vote at a polling place with social distancing.
8. To estimate how voters might or might not vote in the 2020 election I examined how these voters cast their ballot in the 2016 and 2018 elections against their preferences for voting in 2020. Among voters who said, they would be very likely to vote by mail in the 2020 Presidential Election, 52% voted in-person on or before Election Day in the 2018 election. In 2016, 51% had voted in-person on Election Day.

Declaration of Prof. Robert Stein – Page 2 of 4

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 47 of 61
9. Among voters who voted in-person on or before Election Day in 2018, only twothirds said they would be very likely to vote in-person at a polling location with social distancing in the 2020 Presidential election. This figure remains unchanged for persons who vote in-person in the 2016 election.
10. The take away from these findings is that between one-third and half of the voters who previously voted in-person in 2016 and 2018 are very likely to vote by mail in the 2020 election over in-person voting, either before or on Election Day with social distancing.
11. Voters’ willingness to vote in the November 2020 election under the threat of the coronavirus is neither uniform across the electorate nor balanced among specific social, demographic and political groupings of the electorate.
12. More than 30% of Democrats compared to only 9% of Republicans are either somewhat or very unlikely to vote at a polling location with only social distancing.
13. A quarter of women compared to only 14% of men are unlikely to vote at a polling location with only social distancing to protect them from the spread of the coronavirus.
14. Among the most vulnerable to the coronavirus, persons over 65, 27% said they were somewhat or very unlikely to vote at a polling location with only social distancing required of voters and poll workers. Only 18% of voters under 65 years of age expressed a reluctance to vote at polling location with the same conditions.
15. The challenge confronting Harris County election officials is how to make voting in-person, either on or before Election Day, safe for voters and poll workers. Some ways to achieve this goal are suggested by the responses of voters and poll workers to our surveys. The option to vote by mail is one readily available to voters over the age of 65 and one the County Clerk can enhance by public outreach. For most voters under 65 in-person voting is the only option for

Declaration of Prof. Robert Stein – Page 3 of 4

App. 47

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 48 of 61

option for voting in 2020 under the State's interpretation of the vote-by-mail laws. Enhancing in-person early voting opportunities at locations where voters and poll workers have access to open spaces for maximum social distance, personal protective equipment for poll workers and gloves and Q-tips for voters to operate the e-slate voting machines are ways to secure voter confidence.
16. To accommodate all eligible voters, voters under 65 need the option to vote in a manner that makes them safe or some voters will not participate.

,f_'_f _ , ~ EXECUTED on __ ____

20 Z~

-,~ Robert Stein

Declaration of Prof. Robert Stein - Page 4 of 4

App. 48

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 49 of 61
2020 Harris County Voter and Poll Worker Survey
1. Introduction
In collaboration with the Harris County Clerk and with funding from Rice University’s COVID-19 Initiative, Professors Claudia Acemyan, Philip Kortum, Robert Stein, Elizabeth Vann and Dan Wallach from Rice University surveyed Harris County voters and poll workers about polling place practices for the 2020 Presidential election during the current Coronavirus pandemic.
On-line Interviews were completed by 1,800 poll workers between March 27 and May 4, 2020. During the same period, 1,000 live telephone interviews with registered voters in Harris County were completed. Details about the methodology used with each survey are included in appendices to this report.
This report details three sets of findings for each of these populations: ● Which polling place accommodations are most popular among all respondents? ● Which polling place accommodations most divide respondents along demographic and/or partisan lines? ● Which polling place accommodations are least preferred by the highest percentage of respondents?
2. Poll worker survey
There are approximately 6,000 active poll workers in Harris County. Two-thirds of these persons are women, 49% Democrats, 37% Republicans, and 14% are unaffiliated. Voters over 65 represent 41% of active poll workers in Harris County. Our sample (N=1,800) of poll workers closely matches the population of active poll workers on these three traits.
Poll workers were asked about their preferences for eight different actions that might be taken at polling locations during the November 2020 Presidential election. Specifically respondents were asked:
Given that Texas is practicing social distancing due to the coronavirus, assuming the presidential election were being held this week, how likely would you be to serve as a poll worker:
● at a polling station that had distancing requirements? ● at a drive-thru polling location where voters could vote from their cars?
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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 50 of 61
● at a polling location where only one person can vote at a time? ● at a polling location where voters are given Q-tips or sanitized gloves for use on
voting machines? ● at a polling location where voters are separated from poll workers by plexiglass
screens? ● at a polling location which is outdoors?
Poll workers were also asked:
If the corona virus is still active at the time of the presidential election which polling location that I described to you would you MOST be willing to serve at?
● An outdoor polling location ● A polling location where voters are separated from poll workers by plexiglass
screens ● A polling location where voters are given Q-tips or sanitized gloves for use on
voting machines ● A polling location where only one person can vote at a time ● A drive-thru polling location where voters could vote from their car ● A polling station that had distancing requirements ● Where poll workers are provided personal protective equipment ● With standard or normal polling conditions
In this section, we examine which polling place conditions were rated most highly by all poll workers in the survey, which polling place conditions most divide poll workers across demographics and/or political party affiliation, and which polling place conditions are least favorable across all poll workers surveyed.
Which polling place accommodations are most popular among all poll workers?
Of the eight choices given, a majority of poll workers have preferences for the following polling conditions:
● Distance requirements ● Sanitized gloves ● Plexiglas screens ● Personal protective equipment
A majority of all poll workers as well as a majority within each demographic measure (partisanship, gender, and age) reported that they would be very likely to work under any of these four conditions. When it came to these accommodations, we found only
App. 50

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 51 of 61

small differences among Democrats and Republicans, males and females and poll workers over and under the age of 65. In most instances, more than 60% of poll workers by party, gender and age responded they would be “very likely” to work at polling locations that employed any of these four safety accommodations.

Percent of poll workers who said they were very likely to work with these accommodations in place:

All poll

workers Dems Reps Female

Male

< 65

Distancing requirements

66%

61%

70%

65%

66%

67%

Sanitized gloves

61%

58%

63%

62%

60%

64%

Plexiglas screens

61%

61%

60%

63%

57%

63%

PPE

62%

58%

65%

63%

61%

66%

Over 65 63%
57% 58%
57%

When we expand our analysis to consider those poll workers who reported that they would be “very likely” or “somewhat likely” to work with one of these four accommodations in place, we find even greater support across all poll workers, and no significant differences within demographic categories. More than 80% of all poll workers surveyed responded that they would be “very likely” or “somewhat likely” to work under any of these four conditions. No category of political party, gender, or age fell below 80% on these responses.

Percent of poll workers who reported they were very or somewhat likely to work with these accommodations in place:

All poll workers

Dems

Reps

Female

Male

< 65

Over 65

Distancing requirements

86%

83%

90%

86%

87%

88%

85%

Sanitized gloves

84%

81%

86%

84%

84%

86%

81%

Plexiglas screens

86%

88%

83%

87%

83%

86%

85%

PPE

85%

84%

86%

86%

86%

88%

82%

In sum, the majority of poll workers agree that they would be most likely to work at polls that implemented distancing requirements, supplied voters with Q-tips or sanitized

App. 51

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 52 of 61

gloves for use on voting machines, separated poll workers from voters using plexiglass screens, and/or provided PPE for poll workers.

Which polling place accommodations most divide poll workers along demographic and/or partisan lines?

Poll workers disagreed most strongly about drive-thru polling locations and working under normal polling circumstances, with no additional safety precautions in place. Democrats and poll workers under 65 were most comfortable with drive-thru voting services, while Republicans and men were more comfortable working under normal polling conditions with no safety precautions in place and less likely to prefer working at polling locations with drive-thru voting.

Drive-thus
Normal polling conditions

Percent of poll workers who said they were very likely to work under the following conditions:

All poll

workers Dems Reps Female

Male

< 65

44%

47%

37%

26%

23%

50%

33%

21%

30%

29%

41%

36%

Over 65 36%
30%

When we combine “very likely” and “somewhat likely” responses, the demographic and partisan differences grow wider. Democrats preferred drive-thru polling at a rate nearly 20 points higher than that of Republicans. Conversely, Republicans were willing to work under normal polling circumstances with no safety precautions at a rate 30 points higher than that of Democrats. Women were also more likely (+8 pts) to feel comfortable working at drive-thru locations than men, and men were more likely than women (+13) to feel comfortable working under normal polling conditions. Finally, poll workers under 65 were more likely (+8) to feel comfortable working at a drive-thru location as well as under normal polling conditions (+16) than those over 65.

Percent of poll workers who reported that they were very or somewhat likely to work under the following conditions:

All poll workers

Dems

Reps

Female

Male

< 65

Over 65

Drive-thus

69%

75%

57%

72%

64%

72%

64%

Normal polling conditions

52%

40%

70%

48%

35%

54%

38%

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 53 of 61

Which polling place accommodations were least desirable among all poll workers?

A minority of poll workers across demographics reported that they were “very likely” to work under the following polling place conditions: a drive-thru polling location where voters could vote from their car; an outdoor polling location; a polling place where voters could vote one at a time; or a polling location that operated under normal conditions, with no added safety precautions. Among these options, the highest rating within demographics was for drive-thru voting by poll workers under 65; 50% of them reported that they were “very likely” to work under those conditions. Fewer than 50% of all other demographics reported that they were “very likely” to work under each of these circumstances.

Although Republican poll workers did express significantly less reticence about working at the polls under ‘normal conditions’ than their Democratic counterparts, only 30% of Republicans said they would be willing to work at a poll location under ‘normal conditions.'

Drive-thus

Percent of poll workers who said they were very likely
to work under the following conditions:

All poll

workers Dems Reps Female

Male

< 65

44%

47%

37%

26%

23%

50%

Normal polling conditions
Outdoor polling location
One person at a time

33% 41%
46%

21% 35%
27%

30% 49%
22%

29% 39%
27%

41% 45%
22%

36% 41%
26%

Over 65 36%
30% 40% 25%

When we expand our analysis to include “very likely” and “somewhat likely” responses, we find that a strong majority expressed a potential willingness to work under drive thru, outdoor, and one person at a time polling place arrangements. The exception here is working under normal polling conditions, which reaches only 52% even after we include “somewhat likely” responses.

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 54 of 61

Percent of poll workers who reported that they were very or somewhat likely to work under the following conditions

All poll workers

Dems

Reps

Female

Male

< 65

Over 65

Drive-thus

69%

75%

57%

72%

64%

72%

64%

Normal polling conditions

52%

40%

70%

48%

35%

54%

38%

Outdoor polling location

68%

64%

72%

67%

69%

69%

56%

One person at a time

72%

73%

80%

73%

67%

74%

69%

In sum, of all the options posited to poll workers in the survey, the possibility of working under normal polling conditions, with no additional safety precautions in place, was the least favorable option among all poll workers, receiving the lowest overall rating as well as consistently low ratings across all demographics and political party affiliations.
In addition to asking poll workers to rate possible polling place conditions along a scale of “very likely” to “very unlikely,” we also asked them to identify whether there were any polling conditions under which they were simply unwilling to serve. There was no majority opinion among poll workers on this question, but the modal response, given by 29% respondents, was “I would be willing to work at any of these types of polling locations.” More than a quarter of poll workers said they would not work at an outdoor polling location. No other polling location was identified as unacceptable by more than 16% of all poll workers or any subgroup of poll workers.
With few exceptions, poll workers’ unwillingness to work under any of the polling conditions described to them was uniform across gender, partisanship, and age i.e., persons over and under 65.

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 55 of 61

Percent of poll workers who reported that would not work at a polling location under the following conditions

Drive-thru

All 8.7%

Gloves/Q-Tips

10.4%

At any location

29.1%

One voter at a time 7.7%

Outdoor location

26.8%

Plexiglas screens

13.4%

PPE

1.8%

Social distancing

2.2%

Dems 7.1%
12.7% 27.4%
6.6% 27.9% 14.1%
1.4% 2.9%

Reps 10.6%

Female 9.0%

8.5% 11.4%

29.9% 29.8%

9.6%

6.5%

25.2% 27.4%

12.4% 11.9%

2.1%

1.7%

1.7%

2.3%

Male 8.0% 8.5%
27.9% 9.8%
25.9% 16.1%
2.0% 2.0%

< 65 7.0% 9.2%
31.5% 7.7%
28.4% 12.2%
1.5% 2.6%

65+ 11.1% 12.2% 25.7%
7.7% 24.3% 15.1%
2.2% 1.6%

Financial Need as a Factor in Poll Workers’ Willingness to Work
Poll workers are paid between $200 and $250 per day to work at early and Election Day poll locations. With a total of 14 days of voting, a typical poll worker can earn as much as $3,000 in each election1. This amount of money is consequential to poll workers. Forty-two percent of respondents said that the money they are paid is very important to them and their family. Among Democrats, nearly 45% report the money they are paid is very important to them and their families. Only 35% of Republicans said the money they are paid is very important to them.
How important is the money you are paid as a poll worker to you and your family?

Very important Somewhat important Somewhat unimportant Very unimportant

All poll workers 42.6%% 29.8% 14.7% 13.9%

Democratic 44.7% 27.5% 14.5% 13.3%

Republican 35.2% 32.8% 15.8% 16.2%

1 This assumes a 12 hour day of operation at a rate of $20/hr for poll judges and $17/hr for poll workers.

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Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 56 of 61
The money paid to work at the polls is consequential to most poll workers, regardless of partisan affiliation. More than two-thirds of all Democratic and Republican poll workers said the money they are paid is either “somewhat important” or “very important” to themselves and their families.
3. Voter Survey
As of January 2020, there are 2.3 million registered voters in Harris County. The table below details the proportion of registered voters by party affiliation, race/ethnicity, gender, and persons over the age of 65 for the population of registered voters and our survey sample of registered voters. In most instances, the survey sample closely matches the population of all registered voters. The survey sample slightly overrepresents voters above the age of 65.
Harris County voters were asked, If the presidential election were being held this week, how likely would you be to vote in the election if you could cast your vote:
● At a regular polling station that had distancing requirements ● At a drive-thru polling location where you can vote from your car ● Using a mail-in ballot ● By dropping off your completed ballot at a secured location ● Cast your ballot on the internet
In this section, we examine which polling place conditions were rated most highly by all voters in the survey, which polling place conditions most divide voters across demographics and/or political party affiliation, and which polling place conditions are least favorable across all voters surveyed.
Which polling place accommodations were most popular among all surveyed voters?
A majority of all voters surveyed reported that they were “very likely” to vote at polling locations with social distancing, drive-thru voting from their car, as well as with mail-in ballots, and locations where they could drop off their ballot at a secured location.
App. 56

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 57 of 61

Percent of Harris County voters who would be “very likely” to vote using the following methods:

All voters Dems

unaffiliat

Reps

ed

Male

Female

< 65

Distancing requirements

61.8% 49.4% 80.5% 55% 66.7% 58.0% 64.1%

Drive-thru

56.9% 58.6% 51.5% 64% 53.8% 59.4% 63.9%

Over 65 57.5%
43.9%

Mail-in

55.0% 67.5% 41.7% 50% 49.0% 59.7% 50.5% 63.3%

Dropping ballot at secure location
Internet

53.1%

57.2% 49.4% 50% 51.3% 54.3% 56.4% 47.0%

46.4% 52.0% 34.8% 56% 44.7% 47.7% 56.9% 27.1%

When we expand our analysis to include “very likely” and “somewhat likely” responses, we find that a majority of all voters surveyed would likely vote under any of these circumstances.
Looking at responses across demographics and party affiliation, we find that voters were most in agreement about possibilities of voting from their car in a drive-thru polling location and dropping off their ballot at a secure location in their neighborhood, although both of these options were less popular among voters over 65. A majority of all respondents said they would be “very likely” to vote under either of these conditions, and the differences in responses across demographics and political affiliations on these questions was not great.

Percent of Harris County voters who would be “very likely” or “somewhat likely” to vote using the following methods:

All

unaffiliat

voters Dems Reps

ed

Male

Female

< 65

Over 65

App. 57

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 58 of 61

Distancing requirements

79% 69% 90%

79%

85%

74%

82%

73%

Drive-thru

77% 77% 74%

80%

73%

79%

84%

63%

Mail-in

69% 82% 54%

67%

63%

74%

67%

74%

Dropping ballot at secure location

73% 78% 68%

72%

71%

75%

77%

67%

Internet

58%

66% 45%

65%

56%

60%

70%

37%

In their combined “very likely” and “somewhat likely responses,” voters were most in agreement across demographic and political party lines about possibilities of voting from their car in a drive-thru polling location, dropping off their ballot at a secure location in their neighborhood, and voting with social distancing requirements in place, although Republicans are far more willing to vote in person with distancing rules in place than any other group of voters.
Which polling place accommodations most divided voters along demographic and/or partisan lines?
Preferences for how to vote vary significantly among voters by partisanship, gender, and age. Social distancing, internet voting and vote by mail produce the widest differences in the preferences of Democratic and Republican voters. Less than half of Democratic voters said they would be “very likely” to vote at a polling location with social distancing, compared to 80% of Republicans who said they were “very likely” to vote at a polling location with social distancing. More than two-thirds of Democrats reported they were “very likely” to vote by mail compared to only 40% of Republican voters. Fiftythree percent of Democratic voters said they would be “very likely” to vote in 2020 if they could cast their ballot on the internet; only 35% of Republicans expressed the same preference.
Males are more willing to vote at locations with social distancing than females. Females are significantly more likely to prefer voting by mail. Both genders are evenly divided on whether they would be “very likely” to vote if they could cast their ballot on the internet or drop their ballot off at a secure location.
Voters over 65 are significantly more likely than voters under 65 to report they would be “very likely” to vote in 2020 if they could cast their ballot by mail. By a margin of 2:1, voters under 65 would prefer to cast their ballot on the internet over their older counterparts. Voters under 65 similarly prefer drive-thru voting, social distancing at

App. 58

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 59 of 61
polling places, and dropping their ballot off at a secure location. We suspect that the apparent effect of age on voters’ preferences for how to vote in 2020 is due to a slightly higher proportion of Republican than Democratic voters who are over 65.
The variation in voter preferences for how to cast their ballots in the 2020 election closely align with voters’ partisanship. Republicans strongly prefer voting in-person at a polling location with social distancing protocols to voting by mail, on the internet at drivethru locations, or dropping off their ballots at secure locations. Democrats strongly prefer voting by mail to all other modes of voting. These findings closely mirror national trends among partisan voters. The only non-traditional mode of voting preferred by seniors i.e., over 65 is voting by mail, although many of them may already have experience doing so. Other modes of voting, including voting at regular polling locations with social distancing, garner negligible to modest interest from voters over 65.
Which polling place accommodations were least desirable among all voters?
Voters are least interested in the possibility of internet voting. Less than half of all voters surveyed said that they would be “very likely” to vote online if they were asked to do so, and only 58% of all voters said they would be “very likely” or “somewhat likely” to vote online.
When we expand our analysis to include “very likely” and “somewhat likely” responses, a majority of voters surveyed reported that they would vote using any of the five options presented, although online voting remained the least popular option, with 58% saying they would be “very likely” or “somewhat likely” to vote online.
4. Conclusion
It was thought that elections can be held without many voters, but not without many poll workers. This seemed to be the lesson learned from the 2020 Wisconsin Presidential primary election when poll workers refused to work for fear of contracting the coronavirus. In Milwaukee County, election officials were able to open only five of 150 polling locations, forcing voters to choose to vote by mail or risk their health voting with others at congested polling places. To date 40 poll workers are reported to have contracted the coronavirus on Election Day 2020.
In spite of the Wisconsin experience, poll workers in Harris County show little reticence to work the polls in November. This is true in spite of a continued threat from the Coronavirus. Poll workers’ willingness to work the polls, however, comes with some conditions. More than three-fourths of all poll workers surveyed are somewhat or very likely to work at the polls in November when they are provided personal protective
App. 59

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 60 of 61
equipment, sanitized gloves, plexiglas screens, distancing requirements and one person voting at a time. Curiously, poll workers are not enthusiastic about other ways to protect themselves and voters from the coronavirus, including outdoor polling locations and drive-thru polling places. However, we might note here that the choices they did not like would involve major restructuring of voting process and systems with which they may be familiar and comfortable. Of course, this calculus might change drastically if the new CDC/FEMA models are correct and daily US deaths double to 3000/day in the coming months.
Also motivating poll workers to work the November 2020 election is the importance of the money they are paid for their services. A single poll worker can make up to $3,000 during an election, a consequential amount of money for nearly two weeks of work under any circumstances.
Voters’ willingness to vote in the November 2020 election under the threat of the coronavirus is neither uniform across the electorate nor balanced among specific social, demographic and political groupings of the electorate. This is most visible in the likelihood that voters will vote in the November election at locations with normal polling operations and social distancing. More than 30% of Democrats compared to only 9% of Republicans are either somewhat or very unlikely to vote at a polling location with only social distancing. Similarly, a quarter of women compared to only 14% of men are unlikely to vote at a polling location with only social distancing to protect them from the spread of the coronavirus. Finally, among the most vulnerable to the coronavirus, persons over 65, 27% said they were somewhat or very unlikely to vote at a polling location with only social distancing required of voters and poll workers. Only 18% of voters under 65 years of age expressed a reluctance to vote at the same polling location.
By significant majorities Democrats, women and voters over 65 strongly prefer mail-in voting, drive-thru voting, voting on the internet and secured drop off locations for completed ballots over regular voting at polling locations practicing social distance. Republicans, men and voters under under 65, do not share these preferences. Moreover, implementation of these polling place practices are unlikely for the November election.
The challenge confronting Harris County election officials is how to make voting inperson, either on or before Election Day, safe for voters and poll workers. Some ways to achieve this goal are suggested by the responses of voters and poll workers to our surveys.
The option to vote by mail is one readily available to voters over the age of 65 and one the County Clerk can enhance by public outreach. For voters under 65 in-person voting
App. 60

Case 5:20-cv-00438-FB Document 66-1 Filed 05/14/20 Page 61 of 61 is the only option for voting in 2020. Enhancing in-person early voting opportunities at locations where voters and poll workers have access to open spaces for maximum social distance, personal protective equipment for poll workers and gloves and Q-tips for voters to operate the e-slate voting machines are ways to secure voter confidence.
App. 61

 
 Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 1 of 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

Texas Democratic Party, et al., Plaintiffs,
v. Greg Abbott, et al.,
Defendants.

§ § § § § CIVIL ACTION NO. 5:20-CV-00438-FB § § § §

AMICI CURIAE BRIEF OF PUBLIC INTEREST LEGAL FOUNDATION AND LANDMARK LEGAL FOUNDATION IN OPPOSITION TO PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION
The Public Interest Legal Foundation and Landmark Legal Foundation, by and through undersigned counsel, respectfully files this amici curiae brief in opposition to Plaintiffs’ motion for preliminary injunction. (Doc. 10.).
Introduction Voter intimidation is a serious allegation. Section 11(b) of the Voting Rights Act of 1965 (“VRA”) states that “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote…” 52 USC § 10307(b). The U.S. Department of Justice’s website lists only two cases it has brought under the Section 11(b) of the VRA. See Cases Raising Claims Under Section 11(b) of the Voting Rights Act, https://www.justice.gov/crt/cases-raising-claims-undersection-11b-voting-rights-act. The first case involved the “deployment of armed and uniformed personnel at the entrance to the polling location.” Complaint at 5, United States v. New Black
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Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 2 of 9
Panther Party, Case No. 2:09-CV-00065-SD (E.D. Pa., filed Jan. 7, 2009). The second case involved individuals “treating voters in a hostile and intimidating manner when they come into the courthouse to vote absentee ballots.” Complaint at 15, United States v. Brown, Case No. 4:05-CV-33-TSL-LRA (S.D. Miss., filed Feb. 17, 2005). Undersigned counsel (Adams) was counsel for the United States in both of those cases.
Plaintiffs base their claim of voter intimidation on an informal letter of legal advice from the Texas Attorney General’s office in response to a request for guidance from a state legislator. Amici suggest that applying the VRA to the facts of this case would be wholly beyond constitutional limits and contrary to the plain meaning of the statute. Most of all, it would stamp out speech protected by the First Amendment.
Amici have an interest in this matter. Landmark Legal Foundation is a national public interest law firm committed to preserving the principles of voter integrity, separation of powers, federalism, and defending individual rights and responsibilities. The Public Interest Legal Foundation’s charitable missions include working to protect the fundamental right of individuals and persons to engage in constitutionally protected speech, ensuring the enforcement of voter qualification laws and election administration procedures, and providing assistance to states that seek to exercise their constitutional powers to determine the rules and laws pertaining to their own state elections. The Public Interest Legal Foundation has sought to advance the public’s interest in balancing state control over elections with Congress’s constitutional authority to protect the public from racial discrimination in voting. This is best done by ensuring that the VRA and other federal election laws are preserved and followed as the drafters intended not as those who are opposed to truthful speech would prefer.
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Argument I. Plaintiffs’ Allegations Are Insufficient Under Section 11(b) of the VRA.
This case seeks to prohibit the Attorney General of Texas from communicating truthfully about state law. By characterizing the Attorney General’s communications as “threats,” (Doc. 10 at 26), the Plaintiffs present an alarming attack on free speech , the rule of law and the power of public officials, and their necessary and proper powers to participate in public discourse about the actions of their office. Simply providing guidance on the Attorney General’s interpretation of state law cannot constitute violations of the VRA in this circumstance. If it did, it would constitute an unconstitutional application of the VRA. To allege that communications such as these constitute threats and voter intimidation is an attack on both constitutionally protected speech and on the power of a state official to communicate about state law.
A. Plaintiffs Fail to Plead a Violation of the VRA. As an initial matter, the Plaintiffs have not pled a violation of the VRA Section 11(b), 52 U.S.C. § 10307(b). Plaintiffs’ Amended Complaint alleges a violation of “Title 42 U.S.C. § 1985, part of the Civil Rights Act of 1871,” not 52 U.S.C. § 10307(b). Yet, in their motion, Plaintiffs claim that they are seeking “a preliminary injunction pursuant to its as-applied claims relating to: … (3) voter intimidation in violation of 52 U.S.C. § 10307(b).” Doc. 10 at 14. They go on further to support the voter intimidation section of their argument by stating that “[i]t goes without saying that ‘[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote…’” (Doc. 10 at 26 (citing 52 U.S.C. § 10307(b))). Plaintiffs are not likely to succeed on a claim that they did not assert in their complaint. However, even if Plaintiffs did plead a violation of Section 11(b) of the VRA, their claims fall woefully short.
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Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 4 of 9
B. Courts Have Rejected Much More Serious Allegations Under Section 11(b). Courts have been unwilling to apply Section 11(b) even in cases with more serious allegations. For example, in United States v. Brown, Defendant Brown acting as the administrator of a county primary election, issued a press release listing 174 voters who he said “might be challenged under the authority of Miss. Code Ann. § 23-15-575 if they attempted to vote in the Democratic primary.” United States v. Brown, 494 F. Supp. 2d 440, 474 (S.D. Miss. 2007). “Each of the 174 voters he identified is white.” Id. at 474 n.53. The Department of Justice argued “that Brown’s public ‘threat’ to challenge persons on the list of 174 white voters if they attempted to vote in the 2003 Democratic primary violates Section 11(b).” Id. at 477 n. 56. The district court disagreed. “Although the court does conclude that there was a racial element to Brown’s publication of this list, the court does not view the publication as the kind of threat or intimidation that was envisioned or covered by Section 11(b).” Id. In Gremillion v. Rinaudo, the plaintiff alleged “that the Chief-of-Police of New Roads, Louisiana (the parish seat), Mr. Kerby Aguillard, who was neither a voting commissioner nor a poll watcher, assisted…voters in the voting machines while attired in his police uniform.” Gremillion v. Rinaudo, 325 F. Supp. 375, 376 (E.D. La. 1971). The court dismissed the complaint, in part because it was “unable to perceive why assistance from a uniformed police officer, without anything more, should on its face be held to be coercion and intimidation in violation of the 1965 Voting Rights.” Id. at 379. Plaintiffs’ allegation that an Attorney General’s guidance letter is voter intimidation raises the important issue of what constitutes protected free speech versus “intimidation” and “coercion.” Plaintiffs’ theories of liability abuse the VRA and this case is part of a broader
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Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 5 of 9
national strategy to use the VRA to intimidate organizations and officials who seek to improve the integrity of American elections. To the Plaintiffs, mere public discussion of election integrity efforts is seen as threatening or coercive. Plaintiffs’ allegations seek to expand the reach of Section 11(b) of the VRA beyond what the drafters intended and what courts have allowed. Moreover, Plaintiffs’ version of Section 11(b) would intrude into the power reserved to the states to administer their own elections and speak truthfully about state election administration laws.
A factual circumstance more suited to Section 11(b) than Plaintiffs’ allegations arose in the Eastern District of Pennsylvania in 2009. That case, United States v. New Black Panther Party for Self-Defense, et al., Case No. 2:09-CV-00065-SD, saw two members of the Defendant’s party stood outside of a polling location wearing paramilitary uniforms, shouting racial slurs, and brandishing a weapon – a nightstick – in front of a polling place. Complaint at 23, United States v. New Black Panther Party, Case No. 2:09-CV-00065-SD (E.D. Pa., filed Jan. 7, 2009). The Department of Justice alleged that the defendants engaged in the following activities towards “protected individuals: brandishing a deadly weapon toward them, directing racial slurs and insults at them, and attempting to prevent their authorized ingress and egress at the polling locations.” Id. at 7.1
A guidance letter from the Attorney General’s office does not come close to those level of threats and intimidation.
II. History and Case Law Do Not Support Plaintiffs’ Arguments Under the TwentySixth Amendment.
The Plaintiffs also seek a preliminary injunction based on the “claim that the Attorney General’s interpretation of state election law discriminates against young voters on account of
1 A default judgment was entered against two of the defendants in the case enjoining them from repeating the behavior.
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age, in violation of the Twenty-Sixth Amendment.” (Doc. 10 at 15-16.) The Twenty-Sixth Amendment lowered the voting age from 21 years to 18 years. U.S. Const. Amend. 26. It prohibits the denial of the right to vote on account of age. Id. It does not prohibit reasonable protections used by states to ensure the integrity of the vote. The Attorney General’s interpretation of Tex. Elec. Code § 82.003 does not deny any person the right to vote because of age. It is a commonsense condition imposed by the state to ensure an orderly election process.
Before the enactment of the Twenty-Sixth Amendment, Congress passed certain amendments to the Voting Rights Act that lowered the voting age from 21 to 18. As part of its findings, Congress noted that while the law imposed certain “national defense responsibilities” upon 18-year-olds, it denied those individuals the right to vote. Congress considered such treatment “particularly unfair” and should thus be remedied by lowering the voting age. These amendments did not create a universal ban on any secondary age requirements placed on absentee voting – they simply ensured those over 18 the right to vote. And Congress justified such prohibitions because the law obligated 18-year-olds to serve in the military but denied those individuals the right to vote. Congress, therefore, never considered whether an absentee voting requirement based on age would unduly burden the right to vote.
Because the Voting Rights Act amendments only applied to federal elections (not state and local elections), Congress, with support from the states, proposed an amendment to the Constitution for universal voting for all citizens over 18. See Oregon v. Mitchell, 400 U.S. 112 (1970). Ratification occurred after extensive debates on the abilities of 18-year-olds to conscientiously participate in the election process. Congress explained that most people between 18 and 21 had completed high school, most 18-year-olds bear all or most of an adult’s responsibilities and that younger voters should be extended the opportunities to influence society
6

Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 7 of 9
in a constructive manner. Cong. Research Service, The Eighteen Year Old Vote: The TwentySixth Amendment and Subsequent Voting Rates of Newly Enfranchised Age Groups, May 20, 1983, Report No. 83-103.
Importantly, the debates describe absentee voting not as a privilege or inherent right but as a “special burden” used by states to “dissuade [young voters] from participating in the election.” United States v. Texas, 445 F. Supp. 1245, 1254 (S.D. Tex. 1978) (citing Senate Report No. 26, 92 Cong. 1st Sess. (1971)). Congress labeled absentee voting laws a tool used to suppress young voters – not as an automatic right subject to the same scrutiny and protections as the general right to vote. Plaintiffs, in other words, have it exactly backwards. Congress never intended the Twenty-Sixth Amendment to apply within the context of absentee voting.
In earlier litigation, the Twenty-Sixth Amendment has been used to invalidate laws designating college students as domiciliaries of their parents’ homes. These cases all involve the right to vote – not a perceived right to cast an absentee ballot. See United States v. Texas, 445 F. Supp. 1245. Nowhere in these cases do courts rule that age restrictions as applied to absentee voting are improper under the Twenty-Sixth Amendment. Rather, absentee voting was characterized as a tool used by states to suppress college-age citizens from voting. See Jolicoeur v. Mihaly, 5 Cal. 3d 565, 96 Cal. Rptr. 697, 488 P.2d 1 (Aug. 27, 1971) (“[R]espondents have abridged petitioners’ right to vote in precisely one of the ways that Congress sought to avoid--by singling minor voters out for special treatment and effectively making many of them vote by absentee ballot.”)
The ratification history and case law pertaining to the Twenty-Sixth Amendment do not support Plaintiffs’ expansive interpretation. To the contrary, the debates suggest that Congress
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Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 8 of 9

considered absentee voting a barrier erected by states to dissuade young people from voting, not a matter subject to the Amendment’s protections on the right to vote.
CONCLUSION For the foregoing reasons, the Court should deny the Plaintiffs’ motion for a preliminary injunction.

Dated: May 14, 2020
Respectfully Submitted,
/s/ Andy Taylor__________ Andy Taylor SBN: 19727600 Andy Taylor & Associates, P.C. 2628 Hwy 36 South #288 Brenham, Texas 77833 Tel: 713-222-1817 Fax: 713-222-1855 ataylor@andytaylorlaw.com
J. Christian Adams* Public Interest Legal Foundation 1555 King St., Ste. 200 Alexandria, VA 22314 (317) 203-5599 adams@publicinterestlegal.org

Kaylan L. Phillips* Public Interest Legal Foundation 32 E. Washington St., Suite 1675 Indianapolis, Indiana 46204 Tel: 317-203-5599 Fax: 888-815-5641 kphillips@publicinterestlegal.org
Michael J. O’Neill* Matthew C. Forys* Landmark Legal Foundation 19415 Deerfield Ave. Suite 312 Leesburg, VA 20176 (703) 554-6100 mike@landmarklegal.org matt@landmarklegal.org
*Application for admission pro hac vice to be filed if necessary

8

Case 5:20-cv-00438-FB Document 73 Filed 05/14/20 Page 9 of 9 CERTIFICATE OF SERVICE
I certify that on May 14, 2020, I caused the foregoing to be filed with the United States District Court for the Western District of Texas via the Court’s CM/ECF system, which will serve all registered users.
/s/ Andy Taylor__________ Andy Taylor SBN: 19727600 Andy Taylor & Associates, P.C. 2628 Hwy 36 South #288 Brenham, Texas 77833 Tel: 713-222-1817 Fax: 713-222-1855 ataylor@andytaylorlaw.com
9

 
 Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MAY 1 9 2020

TEXAS DEMOCRATIC PARTY, GILBERTO HINOJOSA, Chair of the Texas Democratic Party, JOSEPH DANIEL
CASCINO, SHANDA MARIE SANSING, and BRENDA LI GARCIA,

cLE$/" CLERK, U.S. oiSTRICI
WESTERN DISTRICT OF
BY________________
DE

Plaintiffs,

V.

CIVIL ACTION NO. SA-20-CA-438-FB

GREG ABBOTT, Governor of Texas, KEN PAXTON, Texas Attorney General, RUTH HUGHS, Texas Secretary of State, DANA DEBEAUVOIR, Travis County Clerk, and JACQUELYN F. CALLANEN, Bexar County Elections Administrator,

Defendants.

ORDER REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

THE DECLARATION OF INDEPENDENCE para.2 (U.S. 1776).
Two hundred forty-fouryears on, Americans now seek Lifewithout fear ofpandemic, Liberty to choose their leaders in an environment free ofdisease and the pursuit of Happiness without undue

restrictions.
We the People of the United States, in Order to form a more perfect Union.

U.S. CONST. pmbl.

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 2 of 74
Of the 3,929,214 original Americans, "We the People" as the new sovereign with the power to prevent a new despot belonged in the hands of only 235,753 white males who owned property.'
Over time the franchise grew to include all white males,2 African-American men,3 and women.4 Without that evolving expansion, "We the People" are mere words on 200 year old parchment.
There are some among us who would, if they could, nullif' those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings,5 trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill.6
PROCEDURAL BACKGROUND Now before the Court is plaintiffs' assertion that current public health circumstances require
an expansion of how votes are cast to prevent the spread of COVID- 19. Plaintiffs would have the Court interpret "disability" to include lack of immunity from COVID-19 and fear of infection at polling places. Plaintiffs seek a preliminary injunction to enlarge the use of voting by mail in lieu of close quarters in-person voting.
Texas law allows voting by mail for absentees (those who will be away from home for all
of early voting and on election day), voters age sixty-five or older, and those with a "disability"
which prevents them from voting in person. Tex. Elec. Code § 81.001-.004. On April 17, 2020, a Travis County state courtjudge determined that any Texas voter without
established immunity to COVID- 19 meets the plain language definition of disability in the Texas Election Code, and thus, is eligible to apply for a mail in ballot in the upcoming July 2020 run off
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Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 3 of 74
elections. Attorney General Paxton has appealed the ruling. He also threatened election
administrators and voters with criminal prosecution if they followed the state court order.
Plaintiffs filed this federal suit on April 7, 2020. They allege the failure to allow voters under
the age of sixty-five to vote by mail during the pandemic violates their federal constitutional rights. On April 29,2020, plaintiffs filed a motion for preliminary injunction seeking to enjoin defendants from denying mail-in ballots to otherwise eligible voters under the age of sixty-five and to enjoin
defendants from threatening to initiate criminal prosecutions to those seeking or providing mail-in ballots.
On May 13, 2020, the state defendants filed a petition for writ of mandamus with the Texas
Supreme Court seek a determination that election administrators have a duty to reject applications for mail in ballots which claim disability under the Texas Election Code based solely on the
generalized risk of contracting a virus. The state court order has been stayed pending further
proceedings in the state appellate courts, and no ruling has issued either on the appeal or the petition
for writ of mandamus. Plaintiffs' motion for preliminary injunction is ripe for review by this Court. The state
defendants filed a response in opposition to the motion, Bexar County Elections Administrator Jacquelyn F. Callanen filed a response, plaintiffs filed a reply, and amici curiae briefs were filed by several organizations.
In order to secure a preliminary injunction, plaintiffs must establish the following four
elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury if the injunction is denied
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outweighs any harm that will result ifthe injunction is granted; and (4) that the grant ofan injunction
will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442,445(5th Cir. 2009). Plaintiffs contend they have met their burden of proof because defendants' interpretation of the disability
provision allowing vote by mailwhich would exclude those who seek to avoid possible exposure
to the coronavirus from the disability authorizationsubjects voters under the age of sixty-five to
unconstitutional burdens not levied on voters age sixty-five or older.
The state defendants respond that the resolution of the state court litigation will invariably
alter this closely-relatedfederal proceeding. They therefore argue that the abstention doctrine applies and this Court should decline to hear plaintiffs' claims at this juncture. The state defendants further contend that plaintiffs lack standing and have not met their burden to show they are entitled to a preliminary injunction.
Plaintiffs reply that they have standing to bring suit and that abstention is not warranted because resolution by the state courts will not render this case moot or materially alter the constitutional questions presented. Plaintiffs also reurge their arguments that they have met their burden to show substantial likelihood of success on the merits of their claims under the First,
Fourteenth and Twenty-Sixth Amendments of the United States Constitution; irreparable injury to plaintiffs outweighs the threatened harm to defendants if the injunction is denied; and granting the injunction will not disserve the public interest. For a more expansive view ofthe parties' positions,
please see Appendix B.
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Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 5 of 74
DISCUSSION For those who have recently awakened from a Rip Van Winkle sleep, the entire world is
mostly without immunity and fearfully disabled. Moreover, Governor Abbott, the State of Texas, and the federal government have issued guidance concerning prevention of the spread of the virus which speaks in terms of social distancing.7 Plaintiffs say in-person voting makes social distancing difficult if not impossible.
In order to implement in-person voting, poll workers, many of whom are in an at-risk
category, are also exposed to the COVID- 19 virus.8 The Court has concerns for the health safety
of those individuals as well. Other states have recognized the dangers ofin-person voting and have implemented vote by
mail procedures,9 a process recently used by the President of the United States.'° The confusion concerning vote by mail eligibility is exemplified in plaintiffs' Exhibit 35,
campaign material for a Republican candidate endorsed by Attorney General Paxton, who urges voters to use mail ballots based on COVTD-19 concerns authorized by Secretary of State guidance, but subsequently advises that a voter must have the virus based on Attorney General Paxton's advice letter dated April 14, 2020. See docket no. 10, Exhibit 2 (explaining Attorney General Paxton's conclusion that based on the plain language of the relevant statutory text "fear of contracting COVID- 19 does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail."). Confusion also reigns because plaintiffs have not received requested guidance nor can the Court find any guidance from the Secretary of State. The lack of clarity is evidenced in Exhibit 35:

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 6 of 74

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Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 7 of 74
Equally vague and confusing are Attorney General Paxton's prior opinions. Compare Op. Tex. Att'y GenNo. KP-0009 (2015) (determining that no special definition of"disability" is required to use mail in ballot) and contrast Op. Tex. Att'y Gen. No. KP-0149 (2017) (determining that sexual deviant under age sixty-five meets definition of disabled under Texas Election Code § § 82.001 -.004) with Attorney General Paxton's advice letter ofApril 14, 2020 (determining that fear of contracting COVID- 19 does not meet the definition of "disability" to use mail in ballot). Such
contradictory opinions are at best duplicitous and at worst hypritica1. Defendants raise the specter of widespread voter fraud if mail ballots are employed but cite
little or no evidence of such in states already doing so. Texas truth is to the contrary, Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast." The Court finds the Grim Reaper's scepter ofpandemic disease and death is far more serious than anunsupported fearofvoter fraud in this sui generis experience. Indeed, ifvote by mail fraud is real, logic dictates that all voting
should be in person. Nor do defendants explain, and the Court cannot divine, why older voters
should be valued more than our fellow citizens of younger age. U.S. CONST. amend. X1V § 1 ("No State shall. . . deny to any person within its jurisdiction the equal protection of the laws."); Tex. Elec. Code § 82.003 ("A qualified voter is eligible for early voting by mail if the voter is 65 years of age or older on election day.").
In a previous case, the evidence has shown that there is no widespread voter fraud.'2 The
Court has great confidence in the ability of election administrators and law enforcement to prevent or prosecute, with evidence and probable cause, the infinitesimal events of voter fraud, none of
which are likely to affect election outcomes.

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 8 of 74
Attorney General Paxton has publicly expressed a willingness to pursue criminal charges against these election administrators and law enforcement officials. The state defendants point out that, in 2019, this Court dismissed a claim against Attorney General Paxton based on statements that he made in a press release, noting that the plaintiffs there could not sustain a claim based on "an
alleged intimidating press release." Texas League ofUnited Latin Am. Citizens v. Whitley, Case No.
5:l9-CA-00074-FB, docket no. 131 (W.D. Tex. Mar. 27, 2019) (Biery, J.). The Court finds that threatening legal voters and election administrators with criminal prosecution is not the same as issuing a political press release directed at alleged illegal voters. See docket no. 10, Exhibit 2 (Attorney General Paxton's advisory letter threatening voting administrators with criminal
prosecution if they "advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19" and threatening voters with criminal prosecution if they cause a ballot to be obtained under "false pretense" of "disability" based fear ofCOVID- 19); see also Whitley, docket no. 61-3.
The Twenty-Sixth Amendment of the United States Constitution provides: The right of citizens of the United States, who are eighteen 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.
The Texas Election Code allows citizens over sixty-five without a disability to vote by mail.'3 Thus, the Texas vote by mail statute provides for the health safety of mail ballots for those 65 years of age and older but not those 64 years, 364 days and younger. The Court finds no rational basis for such distinction and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.'4
The Texas Election Code defines "disability" as a "physical condition that prevents the voter from appearing at the polling p1ac on election day without a likelihood. . . of injuring the voter's
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Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 9 of 74
health.'5 Disability is also defined as "a physical or mental condition that limits a person's movements, senses, or activities."6 Clearly, fear and anxiety currently gripping the United States has limited citizens' physical movements, affected their mental senses and constricted activities, socially and economically. A new study shows COVID-19's psychological toll: distress among
Americans has tripled during the pandemic compared to 2018. Jean M Twenge and Thomas E.
Joiner, Mental Distress Among US. Adults During the COVID-19 Pandemic (May 15, 2020) (downloaded from https://mfr.osf.io/render?urlhttps://osf.io/downloadl5eb43O25a2.pfd (last visited May 18, 2020).' The evidence also shows voters are right to be fearful and anxious about the risk of transmission to their physical condition. Texas saw the largest single-day jump in coronavirus cases since the pandemic began this past Saturday.'8 The Court finds such fear and anxiety is inextricably intertwined with voters' physical health. Such apprehension will limit citizens' rights to cast their votes inperson.'9 The Court also finds that lack of immunity from COVID-19 is indeed a physical condition.
One's right to vote should not be elusively based on the whims of nature. Citizens should have the option to choose voting by letter carrier versus voting with disease carriers. "We the People" get just about the government and political leaders we deserve, but deserve to have a safe and unfettered vote to say what we get.2° The governed merit more than a Tillichian leap of faith in leaders elected by a small minority of the population as it was in 1789.21
For want of a nail the shoe was lost. For want of a shoe the horse was lost. For want of a horse the rider was lost. For want of a rider the message was lost. For want of a message the battle was lost. For want of a battle the kingdom was lost. And all for the want of a horseshoe nail.22

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 10 of 74
For want of a vote, our democracy and the Republic would be lost and government of the
people, by the people and for the people shall perish from the earth. Accordingly, for the reasons stated herein, the findings made herein, the additional
background in Appendix B and the Findings of Fact and Conclusions of Law in Appendix C, all
attached hereto and made a part hereof, the preliminary injunction is GRANTED as follows: Though Republican voters are not parties to this case, the Court finds it would discriminate
against Republicans not to afford them the same health safety precautions of voting by mail.
Accordingly, the Court sua sponte concludes this Order shall extend to allow Republican voters to
vote by mail as well should they claim disability because of lack of immunity from or fear of
contracting COVJD- 19.
Based on the state defendants' assertion of the abstention doctrine and lack of standing, plaintiffs' response thereto and for the reasons stated in the expanded findings in Appendix C, the
Court concludes the abstention doctrine is not applicable and plaintiffs have standing to bring this suit.
The Court finds plaintiffs have met their burden to show a likelihood of success on the merits, a substantial threat of irreparable injury if the injunction is not issued, the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and that
granting the injunction will not disserve the public interest.
IT IS ORDERED that during the pendency of pandemic circumstances: (1) Any eligible Texas voter who seeks to vote by mail in order to avoid transmission of
COVID-19 can apply for, receive, and cast an absentee ballot in upcoming elections during the
pendency of pandemic circumstances;

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 11 of 74
(2) Defendants Dana Debeauvoir and Jacquelyn Callanen and all their respective officers, agents, servants, employees, attorneys, and persons acting in concert ofparticipation with them may not deny a mail in ballot to any Texas voter solely on the basis that the voter does not otherwise meet the eligibility criteria outlined in Texas Election Code § § 82.001-82.004;
(3) Defendants Dana Debeauvoir and Jacquelyn Callanen their agents, servants, employees, representatives, and all person or entities of any type whatsoever acting in concert with them or acting on their behalf are enjoined from refusing to accept and tabulate any mail ballots received from voters solely on the basis that the voter does not otherwise meet the eligibility criteria outlined in Texas Election Code § 82.00 1-82.004;
(4) Defendant Secretary of State Hughs is ordered pursuant to the power granted her under state law to ensure uniformity of election administration throughout the state, to use her lawful
means to ensure this Order has statewide, uniform effect; (5) All defendants and all their respective officers, agents, servants, employees, attorneys,
and persons acting in concert of participation are enjoined from issuing any guidance, pronouncements, threats of criminal prosecution or orders, or otherwise taking any actions
inconsistent with this Order. This Order does not prevent defendants and their agents and employees
from prosecuting cases of voter fraud where evidence and probable cause exist; (6) Each of the defendants, acting through the appropriate state or local agency, shall publish
a copy of this Court's Order on the appropriate agency website and that the state defendants shall circulate a copy of this Court's Order to the election official(s) in every Texas County; and
(7) No cash bond shall be required of plaintiffs.
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Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 12 of 74
IT IS FURTHER ORDERED that this Order shall remain in full force and effect until a Judgment is issued in this matter or until such time as the pandemic circumstances giving rise to this Order subside.
iT IS FINALLY ORDERED that defendants may petition this Court, upon giving notice and opportunity to be heard to plaintiffs, that the Order should be dissolved for anyreason, including that
the state courts have resolved issues of a matter of state law that render this injunction unnecessary
or because the pandemic circumstances giving rise to it have subsided. It is so ORDERED. SIGNED this 19th day of May, 2020. BIERY UNITED STATES OISTRICT JUDGE
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APPENDIX A Endnotes
1. At the time of the first presidential election in 1789, there were 3,929,214 million Americans.
Https://www.census.gov/history/through the decades/fast facts/l 790_fastfacts.html (last visited
April 13, 2020). Only white, male property owners 6% of the populationwere eligible to
vote. Https://www.archives.gov/exhibits/charters/charters_of_freedomj 3 .html (last visited April 13, 2020).
2. The 1828 presidential election was the first in which non-property-holding white males could
vote in the vast majority of states. North Carolina was the last state to end the practice in 1856. Stanley Engerman & Kenneth Sokoloff, The Evolution ofSuffrage Institutions in the New World
16, 35 (February 2005), http://www.economics.yale.edu.org/UploadedPDF/sokoloff-050406.pdf (last visited April 13, 2020).
3. U.S. CONST. amend. XV. Though in practice their votes were suppressed by poli taxes, violence and intimidation. Https://www.history.com.topics/early-2Oth-century-us/jim-crow-laws (last visited April 14, 2020); see also 42 U.S.C. § 1973 (The Voting Rights Act of 1965); 42
U.S.C. § 2000d, et seq. (The Civil Rights Act of 1964).
4. U.S. CONST. amend. XIX.
5. "The Divine Right of Kings" is the doctrine that kings have absolute power because they were
placed on their thrones by God and therefore rebellion against the monarch is always a sin. Https://www.oxfordreference.comlview/1 01093 .oi/authority.20 110810104754564 (last visited April 27, 2020).
6. On January 11, 1989, President Ronald Reagan referred to America as a "shining city" upon a hill during his farewell speech to the nation:
I've spoken of the shining city all my political life, but I don't know if I ever quite
communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with
people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls
had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.
Https://www.reaganlibrary.archives.gov (last visited May 10, 2020). "A city upon a hill" is a phrase derived from Jesus's Sermon on the Mount:
You are the light of the world. A city set on a hill cannot be hidden. Nor do people light a lamp and put it under a basket, but on a stand, and it gives light to all in the
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house. In the same way, let your light shine before others, so that they may see your good works and give glory to your Father who is in heaven.
Matthew 5:14-16. This scripture was cited at the end of Puritan John Winthrop's lecture, "A Model of Christian Clarity," delivered on March 21, 1630, at Holyrood Church in Southampton, England, before the first group of Massachusetts Bay colonists embarked on the ship Arbella to
settle Boston. He said:
For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have
undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world.
JOHN WINTHROP, THE JOURNAL OF JOHN WINTHROP 1630-1649 1 n.1 (Harvard University Press 1996) (1630).
7. Https://gov.texas.gov/news/postlgovernor-abbott-issues-executive-order-to-expand-openingsof-certain-businesses-and-activities.gov (last visited May 10, 2020); https://dshs.texas.gov/coronavirus/default.aspx (last visited May 10, 2020); https://cdc.gov/coronavirus/20 1 9-ncov/prevent-getting-sick/social-distancing.html (last visited May 10, 2020); https://whitehouse.gov/openingamerica.gov (last visited May 10, 2020).
8. Https://www.pewresearch.org (explaining that "[a]mid COVID- 19 risk to seniors, a majority of poll workers are. . . age 61 or older") (last visited May 5, 2020).
9. All active voters in Georgia were mailed absentee ballot request forms after the Republican
governor and Democratic Party agreed to move the run off elections due to COVID-19.
Https://www.ajc/news/state-regional-govt-politics/gerogia-mail-absentee-ballot-requests.html (last visited April 27, 2020). Currently, registered voters automatically receive a ballot by mail in five states: Oregon, Washington, Utah, Colorado and Hawaii. Seven states have switched to allow all voters to vote by mail with extended deadlines during the pandemic: Alaska, Wyoming, Ohio, Kansas, Delaware, Hawaii and Rhode Island. Other states, such as Florida and Arizona, are encouraging voting by mail. In Pennsylvania, the governor entered an order allowing voters concerned about the coronavirus to request an absentee ballot. Three other states have expanded the option to vote by mail due to COVID-19: Indiana, New Jersey and Maryland. Https://nytimes.comlarticle/2020-campaign-primary-calendar-coronavirus.html (last visited May 10, 2020).
10. Https://www.sun-sentinel.comlnews/politics/fl-ne-donald-trump-palm-beach-countyvoter.html (last visited May 11, 2020).
11. Robert Brischetto, Ph.D., a former executive director of the San Antonio-based Southwest
Voter Research Institute, who was writing for the San Antonio Express News, found that over a
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thirteen year period from 2005 to 2018, there were 73 persons identified as adjudicated in election fraud cases in Texas. He noted:
Almost half of the cases involved the improper use of absentee ballots, where
voter fraud occurs most often. The rules for handling, transporting and mailing absentee ballots are very specific and very elaborate in Texas. While there were a
couple of cases of forging and filling out absentee ballots for others, most were
violations involving possessing, collecting, transporting and assisting in the
submission of absentee ballots. Many of those violations might have been avoided with more training of election officers and education of voters on the handling and mailing of absentee ballots.
Robert Brischetto, Texas Desperate Searchfor Fraudulent Voters, SAN ANTONIO EXPRESS
NEWS, Mar. 19, 2019, https://www.mysanantonio.comlopinionlcommentary/article/Texasdesperate-search-for-fraudulent-voters-i 3674630.php (last visited Apr. 27, 2020).
12. From Texas League of United Latin Am. Citizens v. Whitley:
The evidence has shown in a hearing before this Court that there is no widespread voter fraud. The challenge is how to ferret the infinitesimal needles out of the haystack of 15 million Texas voters. The Secretary of State through his dedicated employees, beginning in February 2018, made a good faith effort to transition from a passive process of finding ineligible voters through the jury selection system in each county to a proactive process using tens of thousands of
Department of Public Safety driver license records matched with voter registration
records. Notwithstanding good intentions, the road to a solution was inherently paved with flawed results, meaning perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state which did not politely ask for information but
rather exemplifies the power of government to strike fear and anxiety and to
intimidate the least powerful among us.
Civil Action No. SA-19-CA-74-FB, (docket no. 61 at page 1) (bold emphasis added).
13. Tex. Elec. Code § 81.001-.004.
14. The rational basis standard is implemented pursuant to Anderson v. Celebrezze, 420 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Alternatively, defendants'
interpretation of the statute does not meet the heightened standard set forth in Village of
Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), or the strict scrutiny standard set forth in Lynch v. Donnelly, 465 U.S. 668, 687 n.13 (1984), as applied in United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), aff'd sub nom., Symm v. United States, 439 U.S. 1105 (1979).
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15. Tex. Elec. Code § 8 1.002(a). 16. Https://www.oxforddictionary.com/us/definition.disability.com (last visited May 11, 2020). 17. This new study suggests that the COVID- 19 pandemic will substantially change daily life in ways which will have a negative impact on mental health. Researchers at San Diego State
University and Florida State University compared a nationally representative online sample of
2,032 American adults in late April 2020, to 19,330 American adults who participated in the April 2018 National Health Interview Survey, to measure mental distress. Although the study has not yet undergone peer review and formal publication, its preliminary data showed that American adults in April 2020 were 8 times more likely to fit criteria for serious mental illness (27.7% v. 3.4%) and 3 times more likely to fit criteria for moderate or serious mental illness (70.4% v. 22.0%) compared to the 2018 sample. 18. Texas reported 1,801 new coronavirus cases on Saturday, May 16, 2020, https://www.dshs.texas.gov (dashboard) (last visited May 16, 2020), reportedly marking the
States' largest single-day jump since the start of the COVID- 19 pandemic.
Https://www.houstonchronicle.comlnews/article/massive-jump-in-COVID- 1 9-cases.html (last visited May 18, 2020).
19. See American Psychiatric Association, Diagnostic & Statistical Manual ofMental Disorders
(5th ed. 2013) (explaining that mental health disorder is condition which affects thinking, feeling, behavior, or mood and which deeply impacts daily functioning).
20. Dutmer v. City ofSan Antonio, 937 F. Supp. 587, 589, 595 (W.D. Tex. 1996) (Biery, J.) ("If
historyjudges the [San Antonio] term limits movement an idea whose time should not have come, the evolutionary experiment called democracy includes the right to make mistakes and,
ultimately, delivers just about the kind of government voters deserve.... Those who believe the [term limits] Ordinance a malignancy on the body politic may have to await the appearance of symptoms to attempt persuasion of a majority to perform corrective surgery at the ballot box.").
21. PAUL TILLICH, DYNAMICS OF FAITH (Harper Collins Publishers Inc. 1957).
22. Benjamin Franklin included a version of this proverb in Poor Richard's Almanac when the American colonies were at odds with the English Parliament. Benjamin Franklin, Poor Richard's Almanac 275 (1758) (G.P. Putman's Sons eds. 1889). During World War II, this verse was framed and hung on the wall of the Anglo-American Supply Headquarters in London.
Https://www.citidel.edu.com (last visited May 1, 2020).
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APPENDIX B OVERVIEW The Texas Election Code § § 82.001 -.004 restricts access to voting by mail through explicit age-based eligibility criteria. Voters age sixty-five and older can vote by mail without an excuse
while voters under the age of sixty-five can do so only if they fit within very limited exceptions.
Plaintiffs allege in this lawsuit that the age restriction is unconstitutional and that the State cannot justify with an adequate basis its decision to grant voters age sixty-five and older additional voting rights than those under age sixty-five.
However, in the motion for preliminary injunction, plaintiffs seek only preliminary reliefon their as-applied challenge. Plaintiffs argue they are entitled to a preliminary injunction because the vote by mail provisions, as interpreted by Texas Attorney General Paxton, violate the Twenty-Sixth Amendment, in the circumstances of the pandemic now facing the state and the country. Plaintiffs assert that, during the pandemic, Attorney General Paxton's strict interpretation of the disability exemption for vote by mail to exclude those who wish to avoid possible exposure to the coronavirus subjects voters under the age of sixty-five to unconstitutional burdens not levied on voters age sixtyfive or older.
Meanwhile, plaintiffs contend the State gives voters no benchmark of which pre-existing
medical conditions allow them to vote with the disability exception and no standard exists for how election officials would enforce the line the State wishes to draw. Plaintiffs assert that the failure
of the State to provide a safe vote by mail option for voters under age sixty-five under these pandemic circumstanceswhile providing that safe option widely to those sixty-five and olderabridges the right to vote on account of age and violates the Twenty-Sixth Amendment and
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the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also contend that Attorney General Paxton violated their rights to free speech. In
response to a state court order finding that state law permits every eligible voter to vote by mail amid the COVID- 19 pandemic, Attorney General Paxton publicly stated that third parties who advise
voters to apply for a mail-in ballot based solely on fear ofcontracting COVID-19 could subject those third parties to criminal sanctions. Plaintiffs assert that Attorney General Paxton's letter is presently
harming their right to vote, and indeed threatens political speech with criminal prosecution, in
violation of the First Amendment. Plaintiffs further argue that Attorney General Paxton's conduct violates their right to be free from voter intimidation as guaranteed by the Voting Rights Act. Finally, plaintiffs seek injunctive relief based on their claim that Attorney General Paxton's interpretation of the Texas Election Code renders the statute unconstitutionally vague because it is
not clear which voters qualify to vote by mail under its provisions. The state defendants respond that plaintiffs have not met their preliminary injunctionburden,
which is to show a substantial likelihood of success on the merits on each claim, sufficient harm to
plaintiffs and undue harm to defendants, and that it serves the public interest to grant the injunction.
They submit that it is safe for all voters to vote in person in the midst of this pandemic. The state
defendants also argue that abstention is warranted in this case because there are ongoing state court proceedings. They further contend that they are entitled to sovereign immunity and plaintiffs lack standing because the state defendants do not enforce the Texas Election Code.
Plaintiffs reply that they have met their preliminary injunction burden. They further argue that this Court should not abstain because they have cognizable federal constitutional claims which will not be addressed in the state court proceedings and the failure to remedy them would cause
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irreparable harm. Plaintiffs further contend the state defendants cannot claim sovereign immunity
because of their connections to the enforcement of the Texas Election Code. Finally, plaintiffs maintain they meet the requirements for Article ifi standing because each has suffered and will continue to suffer legally cognizable injuries because of defendants' actions.
BACKGROUND Given the current pandemic conditions and their effects on election procedure, on March 27,
2020, some of the plaintiffs in this case filed an original petition and application for temporaly injunction in a Texas state court to determine the application ofstate law. Plaintiffs argued § 82.002 of the Texas Election Code allows voters to elect to cast their ballots by mail under the circumstances of this pandemic. Section 82.002 of the Texas Election Code provides:
Sec. 82.002. DISABILITY. (a) A qualified voter is eligible for early voting by mail
if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health. Tex. Elec. Code § 82.002. Section 82.003 of the Election Code states that "[a] qualified voter is eligible for early voting by mail if the voter is 65 years of age or older on election day." TEX. ELEC. CODE § 82.003. Plaintiffs contended that participating in social distancing to prevent the spread of
COVID- 19 is "a sickness or physical condition that prevents the voter from appearing at the polling
place on election day without a likelihood of needing personal assistance or of injuring the voter's
health." They therefore requested a declaration that Texas Election Code § 82.002 "allows any
eligible voter, regardless ofage and physical condition, to request, receive and have counted, a mailin ballot, if they believe they should practice social distancing in order to hinder the known or unknown spread of the virus or disease." Plaintiffs also sought a temporary injunction requesting
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that the Texas Secretary of State and the Travis County Clerk "be enjoined to accept and tabulate
any mail-in ballots received from voters in an upcoming election who believe that they should
practice social distancing in order to hinder the known or unknown spread of a virus or disease."
Shortly after the state court case was filed, the Texas Democratic Party and three voters
brought this federal suit on April 7, 2020. The complaint states that, "[un the event the state courts find that vote by mail is permitted for all voters over the age of eighteen who are social distancing," plaintiffs ask this Court to "ensure compliance with federal law by providing a remedy." Plaintiffs allege this case should proceed so that the Court can timely determine "the constitutional rights of these plaintiffs and be in a position to do so in the event the state court rulings serve to harm these federal rights and/or the state court proceedings are delayed thus preventing timely state resolution of the state law issue." Their complaint asserts claims of age, race and language-minority discrimination, as well as violations of the right to free speech under the First Amendment, vagueness in violation of the Fourteenth Amendment, and intimidation in violation of the Voting
Rights Act. A hearing was held in the state court case on plaintiffs' motion for a temporary injunction
on April 15, 2020. Medical experts testified that they expect pandemic conditions to persist throughout the summer months and into the fall. Texas law allows voting by mail for absentees
(those who will be away from home for all of early voting and on election day), voters age sixty-five
or older, and those with a disability that prevents them from voting in person. As noted, plaintiffs argued that social distancing is a "disability" for purposes ofvoting by mail. The response presented by Assistant Attorneys General in that case was that the courts have no jurisdiction, pandemic conditions might changeby July and GovernorAbbott might provide direction to protect voters and
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the public. Even as the hearing was concluding, Texas Attorney General Ken Paxton released an
advisory letter to the chair of the House Elections Committee, threatening prosecution of any voter
who voted by mail without a narrowly defined "physical condition" constituting a "disability." He threatened "criminal sanctions" as well for any election official advising such a vote. In the letter, Attorney General Paxton gave a non-official, advisory opinion regarding whether or not the risk of transmission ofCOVTD- 19 would entitle Texas voters to cast a mail-in ballot. The letter states: "We
conclude that, based on the plain language ofthe relevant statutorytext, fear ofcontracting COVID-
19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail."
On April 17, 2020, two days after the hearing, Travis County District Judge Tim Sulak ruled
that in the context ofthe COVID-19 pandemic, all Texas voters who are not immune from the virus are eligible to apply for mail ballots under the "disability" provision of state election law. The temporary injunction order, which is imposed through July 27, states that "it is reasonable to conclude that voting in person while the virus is still in general circulation presents a likelihood of injuring the voter's health and therefore any voters without established immunity meet the plain language definition of disability thereby entitling them to a mailed ballot under Tex. Elec. Code
section 82.002." In response to the state court order, Attorney General Paxton stated:
I am disappointed that the district court ignored the plain text of the Texas Election Code to allow perfectly healthy voters to take advantage of special protections made available to Texans with actual illness or disabilities. This unlawful expansion of mail-in voting will only serveto undermine the security and integrity ofour elections
and to facilitate fraud. Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-persoi without needing assistance
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or jeopardizing their health. Fear of contracting COVID- 19 does not amount to a
sickness or physical condition as required by state law.
That same day, Texas Attorney General Ken Paxton filed notice a notice of appeal with the Third Court of Appeals. The Third Court of Appeals transferred the case to the Fourteenth Court of
Appeals which ruled that the state court injunction shall remain in full force and effect pending the
conclusion of the appeal. During this same time period, Attorney General Paxton filed a petition for writ of mandamus asking the Texas Supreme Court to determine that election administrators have "a duty to reject applications for mail-in ballots that claim 'disability' under Texas Election Code section 82.002(a) based solelyon the generalized risk ofcontracting a virus." The appellate case and petition for writ of mandamus remain pending for disposition in the state courts.
On April 29, 2020, plaintiffs filed a motion for a preliminary injunction with this Court
seeking to expedite the process, stating that "[tjhe Rule of Law has broken down in the State of Texas, and it has become clear that the federal courts will have to ensure basic constitutional
protections for the U.S. Citizens within." Plaintiffs contend that, in the days since the state court ruling, counties around the state have begun to comply; many counties have posted notice on their websites that they are accepting vote by mail applications in compliance with Judge Sulak' s ruling; and city and school district elections going forward in early May are accepting vote by mail applications in compliance with Judge Sulak's ruling. Plaintiffs argue that "[a]fter waiting well more than a week watching the state election apparatus turn to comply with the state court order and after
watching tens of thousands of Texans submit vote by mail applications, defendants appear willing to allow the circumstances where the State's judicial branch has so far reached one view of the law
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while, at least part of, the executive branch of state government threatens prosecution for complying
with the Court order." Therefore, plaintiffs contend:
Texas citizens can no longer have confidence that the executive branch of the State will comply with the Rule of Law. Now, even if the State is never successful in
overturning the state court order, the Attorney General has shown he will not comply
with orders of his state's judiciary. Furthermore, Texans will continue to reasonably
fear that the executive branch will not comply with state court rulings and/or that they could be subjected to criminal prosecution for attempting to vote by mail. Under these circumstances, the State is no longer functioning to protect the federal rights
ofU.S. citizens, and even ifit were to begin to do so, voters can have no confidence their rights will be preserved. Moreover, the behavior of the executive branch of
Texas government threatens to upset the State's election apparatus which is largely complying with the state court order and where the State is successful in strong arming local officials to defythe state court order, election procedures throughout the State will be administered non-uniformly.
Accordingly, plaintiffs seek an injunction order blocking state officials from denying a mail-in ballot
to any Texas voter who applies for a mail-in ballot because of the risk of transmission of COVID- 19,
and enjoining defendants, including Attorney General Paxton, from issuing threats or seeking
criminal prosecution of voters and others advising voters on mail ballot eligibility based on the risk
of transmission of COVID- 19.
The state defendants respond that the state court temporary injunction order conflicts with
the Texas Election Code's plain text and "threatens to destabilize the State's carefully crafted
framework governing the conduct of elections." They argue the resolution of the state court
litigation will invariably alter this closely related federal proceeding. For this reason, the state
defendants contend the Pullman abstention doctrine applies and this Court should decline to hear
plaintiffs' claims at this juncture. The state defendants also argue:
Plaintiffs' motion for preliminary injunction also exhibits fatal jurisdictional and substantive defects. None of the state defendantsGreg Abbott, Governor of Texas, Ken Paxton, Texas Attorney General, or Ruth Hughs, Texas Secretary of
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State-enforce the provisions of the Election Code at issue. Sovereign immunity therefore bars plaintiffs' claims for injunctive relief against those officials on the basis ofthose provisions. For related reasons, plaintiffs lack standingto sue the state defendants. And on the merits, plaintiffs have not met their burden of showing that
current or unknown future circumstances will prevent voters from safely exercising the franchise via in-person voting in July or November of this year. The known
science of COVID-19 is constantly evolving, and with it, our understanding of how elected officials can continue to contain the spread of COVID- 19 throughout the
State-including, as relevant here, at polling places. Accordingly, the state defendants request that the Courtabstain fromruling on plaintiffs' claims until
the conclusion of the pending state court litigation. Alternatively, they argue plaintiffs' motion for
preliminary injunction should be denied because plaintiffs have failed to make the required showing to obtain the extraordinary injunctive relief they request.
VOTIN(3 BY MAIL IN TEXAS
Texas law allows voting by mail for registered voters who meet one of the qualifications
stated in the Election Code. See Tex. Elec. Code § 82.00 1, et seq. A voter is qualified to vote by
mail if he or she (1) anticipates being absent from his county of residence on election day; (2) has
an illness or other physical condition that disables him or her from appearing at the polling place; (3) is sixty-five or older; or (4) is confined in jail. Tex. Elec. Code § 82.00 1-004. Voters apply to vote by mail with a mail ballot application sent to the early voting clerk. The early voting clerk is responsible for conducting early voting and must "review each application for a ballot to be voted by mail." Tex. Elec. Code § 86.001(a). An early voting ballot application must include the applicant's
name, the address at which the applicant is registered to vote, and an indication of the grounds for
eligibility for voting by mail. Tex. Elec. Code § 84.002. Mail ballot applicants must certify that "the information given in this application is true, and I understand that giving false information in this
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application is a crime." Tex. Elec. Code § 84.011. Section 84.0041 makes it a crime to "knowingly provide false information on an application for ballot by mail." Tex. Elec. Code § 84.0041.
If the voting clerk determines the applicant is entitled to vote by mail, the voting clerk shall provide the voter a ballot by mail. Tex. Elec. Code § 86.001. If the applicant is not eligible to vote by mail, the voting clerk shall reject the application and give notice to the applicant. Id. A rejected applicant is not entitled to vote by mail. Id. July 2, 2020, is the deadline for an early voting clerk to receive an application to vote by mail for the upcoming July 14, 2020, Democratic Party run-off
election. Tex. Elec. Code § 84.007(c). In their motion forpreliminary injunction, plaintiffs state that "[m]ail ballots are expected to start being sent to voters, in response to their request on May 24,
2020," and that "thousands of vote by mail applications are pouring in now." Plaintiffs maintain that in the last month many Texas counties, including some of the most
populous, have been following the state district court's order interpreting state law in a way that allows all eligible voters, regardless of age and without immunity to COVD- 19, to vote by mail, and its injunction enforcing that order. They allege many mail ballots have already been submitted under this order.
When voters submit absentee ballots, they are asked to check a box to indicate which eligibility criteria they meet but not asked to provide more detailed reasoning. Plaintiffs maintain
the record showsand defendants have not suggested otherwisethat it would be impossible to
disaggregate the absentee ballots that were submitted pursuant to risk of contracting coronavirus during the past several weeks from other qualif'ing absentee ballots. Meanwhile, plaintiffs have not yet submitted their applications for a mail ballot to participate in the Democratic primary runoff
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election because they fear prosecution and they fear the state courts will ultimately determine that
if they vote a mail ballot, their vote will not be counted.
The State is taking steps to impose measures that would make in person voting safer during these pandemic elections. Plaintiffs argue that, even with these measures implemented at the local
level, the State still has no way to ensure the non-transmission of the virus at crowded in-person
polling locations. Recent history has shown that medical professionals in even the most carefully monitored medical environments have fallen ill and died from virus infections. Plaintiffs state that, although the State's efforts toward encouraging increased in-person voting protections are at least a step in the right direction, they also inevitably will slow the election process and limit the rate at which voters can be processed. At the same time, plaintiffs contend the process will be slowed from another direction because fewer election workers will be present.
Plaintiffs point out that the evidence additionally shows that many election workers did not report as scheduled on election day during the March primary elections because of the possibility of contracting the virus. Further, the recent evidence from the Wisconsin election shows that people did in fact contract the virus during in person voting, and this occurred in a state that does not require an excuse to vote by mail. The State responds with some studies that conclude that the rate of virus infection was not meaningfully changed by voting activity in Wisconsin. Presumably, there are a
number of factors that drive virus infection rates and determining one cause from others is a challenging task indeed, particularly given our present state ofknowledge about coronavirus spread. Regardless of the rate of growth in Wisconsin after the election, defendants do not deny that some
individuals have been found to have contracted coronavirus due to their exposure at polling locations.
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PRELIMINARY INJUNCTION STANDARD OF REVIEW In order to secure a preliminary injunction, plaintiffs must establish the following four
elements: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result ifthe injunction is granted, and (4) that the grant ofan injunction will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). None of these elements, however, is controlling. Florida Med. Ass 'n v. United States Dep 't of Health,
Educ. & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979). Rather, this Court must consider the
elements jointly, and a strong showing of one element may compensate for a weaker showing of
another. Id. THE ARGUMENTS OF THE PARTIES
Plaintiffs contend they have established a substantial likelihood of success on the merits of their as-applied claims relating to: (1) age discrimination in violation of the Twenty-Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment; (2) vagueness in the Texas Election Code's defmition of "disability" in violation of the Due Process Clause of the Fourteenth Amendment; (3) voter intimidation in violation of 52 U.S.C. § 10307(b); and (4) the denial of free speech in violation of the First Amendment of the United States Constitution. Plaintiffs further argue they will suffer irreparable injury if the injunction is not granted, their
substantial injury outweighs the threatened harm to defendants, and granting the preliminary injunction will not disserve the public interest. The state defendants disagree plaintiffs have met their burden. The state defendants also contend that plaintiffs lack standing and that the Court
should abstain from hearing plaintiffs' arguments because of the pending state court proceedings.
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Likelihood of Success on the Merits Plaintiffs' Age Discrimination Claims Under the Twenty-Sixth and Fourteenth Amendments
TheTwenty-Sixth Amendmentprovides that "[t]heright ofcitizens ofthe United States, who are eighteen 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. The Equal Protection Clause of the
Fourteenth Amendment "is essentially a mandate that all persons similarly Situated must be treated
alike." Rolfv. City ofSan Antonio, 77 F.3d 823, 828 (5th Cir. 1996) (internal quotation omitted). Plaintiffs argue that § 82.002(a) of the Texas Election Code abridges their right to vote based on their age in violation of the Twenty-Sixth Amendment and discriminates against them based on age in violation ofthe Fourteenth Amendment. Specifically, plaintiffs argue that when in-person voting
becomes physically dangerous, age-based restrictions on mail ballot eligibility become
constitutionally unsound. With regard to the applicable standard of review, plaintiffs argue strict
scrutiny applies. Symm v. United States, 439 U.S. 1105 (1979); see also United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978). They contend Texas is unable to present a compelling state interest in "imposing arbitrary obstacles on voters on account of age when Texas election law does not clearly demand this result during this pandemic." If the Court declines to engage in strict scrutiny, plaintiffs argue it should apply the Arlington Heights framework which evaluates: (1) the impact of the official action and whether it bears more heavily on one group than another; (2) the historical background ofthe decision; (3) the specific sequence ofevents leading up to the decision challenged in the case, including departures from normal procedures in making decisions and substantive departures; and (4) contemporary statements made by the governmental body which created the official action. Village ofArlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252(1977).
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Plaintiffs contend Attorney General Paxton' s interpretation of the law related to mail ballot eligibility in Texas is: (1) discriminatory to every voter under the age of sixty-five and untenable
given the COVID- 19 pandemic, and (2) the official decision by the Attorney General to threaten to enforce that law in the most disenfranchising and severe manner possible, through criminal sanction,
is strong evidence of invidious discrimination.
The state defendants respond that § 82.003 does not "deny or abridge" plaintiffs' right to vote and therefore the challenged statute should be evaluated under the elevated Anderson-Burdick rational basis standard of review. See Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 420 U.S. 780 (1983). Under this rational basis review, as long as the distinctions made in the challenged law bear a rational relationship to a legitimate governmental end, the law must be upheld. McDonaldv. Board ofElection Comm 'rs, 394 U.S. 802, 809 (1969). The state defendants maintain that the decision to limit voting by mail to older Texans is rational because individuals aged sixty-five and over are more susceptible to COVID- 19, and it is related to legitimate governmental interests including the prevention of voter fraud. Accordingly, the state defendants argue that plaintiffs have not shown a likelihood that they will prevail on their Twenty-Sixth and Fourteenth Amendment claims. Plaintiffs' Claim Under the First Amendment
Plaintiffs argue their right to vote has been violated by Attorney General Paxton' s threats of
criminal prosecution. Because the speech at issue is fully protected First Amendment activity, and the burden on this speech is heavy, plaintiffs contend the Court should apply the strict scrutiny
standard ofreview. Citing the reasons stated in support oftheir age discrimination claim, plaintiffs
contend they are likely to succeed on their free speech claim.
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The state defendants respond that Texas Attorney General Paxton has not threatened plaintiffs' right to free speech. They argue plaintiffs' accusation misapprehends the Attorney
General's responsibilities to enforce state statutes and the letter he sent in fulfillment of those
responsibilities. The state defendants also argue that "an injunction prohibiting Attorney General Paxton from threatening voters or voter groups with criminal or civil sanction for voting by mail or communicating with or assisting voters in the process of vote by mail" would violate his rights to comment on matters of public concern. The state defendants therefore contend that plaintiffs have
not shown a likelihood of success on their First Amendment claim.
Plaintiffs' Void for Vagueness Claim Plaintiffs note that the Texas Democratic Party and some ofthe plaintiffs in the instance case
maintained in the state court proceeding that state law allows all voters, regardless of age, to vote by mail because they have a "disability" based on the risk of transmission of COVID-19. They also
noted that, although the state court agreed with plaintiffs, Attorney General Paxton holds a different interpretation. Plaintiffs argue that these factual conditions result in an environment where the "public camiot reasonably determine what state law allows." They therefore argue that Attorney General Paxton's interpretation renders the Texas Election Code unconstitutionally vague in
violation ofthe Fourteenth Amendment because it is not clear which Voters qualif' to vote by mail under its provisions. See Grayned v. City of Rockford, 408 U.s. 104, 108-09 (1972); see also Johnson v. United States, 135 S. Ct. 2551,2556-58 (2015);Kolenderv. Lawson, 461 U.s. 352, 35758 (1983); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972).
The state defendants respond that plaintiffs' void-for-vagueness claim fails because this doctrine has been primarily applied to strike down criminal laws and Attorney General Paxton's
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interpretation of the statute does not render it to be "so vague and indefinite as really to be no rule
at all." Groome Resources, Ltd. v. Parish ofJefferson, 234 F.3d 192,217(5th Cir. 2000). They also contend Attorney General Paxton' s interpretation of the statute does not result in a constitutional violation because he was merely giving his opinion about the statute's construction. See Ford Motor Co. v. Texas Dept' of Transp., 264 F.3d 493, 509 (5th Cir. 2001); Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980). The state defendants therefore conclude that plaintiffs have not shown a likelihood of success on the merits of their vagueness argument. Voter Intimidation
Plaintiffs argue Attorney General Paxton has made the extraordinary choice to upend the rule
of law, disturb the state judiciary from fulfilling its mission, and to outwardly intimidate rightful
voters and the third parties who assist voters in elections. He stated: "[Tb the extent third parties
advise voters to apply for a mail-in ballot based solely on fear of contracting COVID- 19, such
activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041." This advisory opinion was made just as a state court ruled that Texas voters are entitled
to a mail-in ballot because of the risk of transmission of COVID- 19. Hours later, Attorney General
Paxton stated that expanding mail ballot eligibility to all Texans "will only serve to undermine the
securityand integrity ofour elections." Plaintiffs contend that these statements operate to discourage voters from seeking mail-in ballots because of their fear of criminal sanction or victimization by fraud in violation of 52 U.S.C. § 10307.
The state defendants respond that Attorney General Paxton did not intimidate plaintiffs or
any other voters. They argue the communication merely states the law regarding the giving of false
information in connection with a request for a ballot by mail. Accordingly, the state defendants
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maintain that plaintiffs have not shown that their voter intimidation claim is likely to sucôeed on the merits.
Irreparable Injury and Harm
Plaintiffs argue they are irreparably injured if an injunction is not granted and their harm
outweighs any harm to the defendants. They note that voting is a constitutional right for those that
are eligible, and contend that the violation of constitutional rights for even a minimal period oftime
constitutes an irreparable injury which justifies granting their motion for preliminary injunction. See Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B. Nov. 1981) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). In addition, plaintiffs contend that forcing voters to unnecessarily risk their lives in order to practice their constitutional rights while allowing other voters a preferred status so they do not have to face this same burden, is also irreparable injury. They assert: (1) there is no harm to the State allowing registered, legal voters the right to vote in the safest way possible, (2) the State has no interest in forcing voters to choose between their well being and their votes, and (3) the State has no interest in allowing a situation where "the Attorney General can sow confusion, un-even election administration and threaten criminal prosecution" under these circumstances.
The state defendants respond that injunctive relief at this point in the election cycle is improper. They note that the Supreme Court "has repeatedly emphasized that lower courts should ordinarily not alter the election rules on the eve of an election." Republican Nat'! Comm. v. Democratic Nat'! Comm., 140 5. Ct. 1205, 1207 (2020). The state defendants also argue that plaintiffs cannot establish an irreparable injury because "they have not proven that they will be deprived of the safe exercise of the franchise in the State's upcoming elections."
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Public Interest Considerations
Plaintiffs contend "the public is best served by both preserving the public health of Texans and by fervent and competitive races for public office." They argue it is the public policy of the State of Texas to construe any constitutional or statutory provision which restricts the right to vote liberally, and there is no justification nor public interest in denying the ballot to eligible voters. Furthennore, plaintiffs argue it is always in the public interest to prevent violations of individuals' constitutional rights, and to prevent the State from violating the requirements of federal law. Plaintiffs also contend that protecting the right to vote is of particular public importance because it is "preservative of all rights." See Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Accordingly, plaintiffs contend they have met all the requirements for a preliminary injunction.
The state defendants respond that an injunction would undermine the public interest. They
argue "the equitable factors of the injunctive relief analysis tilt heavily against the issuance of an
injunction, especially the overbearing one Plaintiffs ask the Court to adopt." The state defendants
assert that the State has a weighty interest in the equal, fair, and consistent enforcement of its laws. Maryland v. King, 567 U.S. 1301, 1303 (2012). They further maintain that the inability of Texas to
enforce its duly enacted laws clearly inflicts irreparable harm on the State. See Abbott v. Perez, 138 S. Ct. 2305, 2324 n. 17 (2018). The state defendants assert that interest is especially potent in the
middle of a global health crisis and that "if citizens lose confidence in the evenhanded application ofthe State's election laws in these precarious times, the foundations ofour system ofrepresentative
government will weaken." Accordingly, they contend plaintiffs' motion for preliminary injunction should be denied.
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Standing to Bring Suit The state defendants argue plaintiffs are unlikely to prevail on their claims against them under the Fourteenth and Twenty-Sixth Amendments because they do not enforce Texas Election Code § 82.002 or § 82.003, and are immune from suit. For related reasons, the state defendants also argue plaintiffs lack standing to bring their claims against the state defendants. Plaintiffs respond that the state defendants' immunity argument is meritless. Specifically,
plaintiffs maintain that all of the state defendants have a sufficient connection to the enforcement of the Texas Election. Code. They contend that in light of the admissions in this case, including threats of criminal prosecution, this argument bears little credibility. Plaintiffs also argue that each meets the requirements for Article ifi standing because each has suffered and will continue to suffer legally cognizable injuries because ofdefendants' actions. Accordingly, plaintiffs contend this Court
should proceed to hear their motion for preliminary injunction. Abstention
The state defendants contend that, though plaintiffs' current claims sound in federal law, they
cannot be resolved without answering the question posed in state court: whether fear of contracting
COVID- 19 constitutes a "disability" under the Texas Election Code. They contend that question is squarely presented in the state court litigation and will soon be considered by the Texas Supreme
Court. In light of uncertainty about a predicate question of state law, the state defendants argue that this Court should abstain under Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). "The Pullman case establishes two prerequisites for Pullman abstention: (1) there must be an unsettled issue of state law, and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional questions raised." Palmer v. Jackson,
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617 F.2d 424, 428 (5th Cir. 1980). With regard to the second factor, the state defendants contend resolution by the state court will render this case moot or materially alter the constitutional claims presented.
Plaintiffs respond that "the abstention doctrine is not an automatic rule applied whenever a
federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers." Baggett v. Bullitt, 377 U.S. 360, 375 (1964). Plaintiffs also argue that
abstention in this case is improper because the state law determination will not moot nor present in a different posture the federal constitutional questions raised by plaintiffs. Plaintiffs further contend
that, "regardless of whether the challenged provision of Texas Election Code is resolved in Texas
state court, and there is no indication that such clarification will come soon," Texas voters are "waking every day to make the choice to request a mail ballot and have it rejected (and be criminally
prosecuted) or wait further and potentially request the ballot too late or do so with an avalanche of others that overloads the electoral system." Plaintiffs maintain that the orderly administration ofthe election requires resolution now because: (1) the question of whether the current circumstances
violate the United States Constitution remains and must be answered by this Court; (2) the July run-off election is weeks away; and (3) there "is no guarantee that the state court proceedings will have resolved the issue before this election leaving plaintiff's federal constitutional rights in limbo." Accordingly, plaintiffs argue this Court should not abstain from ruling on their motion for preliminary injunction.
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APPENDIX C FiNDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT I. COVID- 19 is an Immediate Danger to all Texans
1. COVID- 19 infection is caused by the SARS-CoV-2 virus and is spread by passing through mucous membranes. Ex. 21 at p. 2.
2. Coronavirus is spread through droplet transmission. These droplets are produced through coughing, sneezing, and talking. Ex. 21 at p. 3. Ex. 22 p. 14. Ex. 22 at p. 16-17.
3. The virus can be spread when an infected person transmits these droplets to a surface like a polling machine screen. Ex. 21 at p. 3. Ex. 22 p. 72-73.
4. It is highly likely that COVID- 19 will remain a threat to the public both in July and
through November. Ex. 6 at p. 3. Even if virus transmission and prevalence do decline over the
summer months, it remains likely that they will resurge in the fall and winter. Ex. 28 at p. 7. 5. Reported illnesses have ranged from mild symptoms to severe illness and death. The most
common symptoms include fever, dry cough, and shortness of breath. Ex. 21 at p. 2-3. Other
identified symptoms include muscle aches, headaches, chest pain, diarrhea, coughing up blood,
sputum production, runny nose, nausea, vomiting, sore throat, confusion, loss of senses oftaste and smell, and anorexia. Due to the respiratory impacts of the disease, individuals may need to be put
on oxygen, and in severe cases, patients may need to be intubated and put on a ventilator. Ex. 28 at
p.3.
6. Anyone can be infected with the novel coronavirus. Ex. 21 at p. 3-4. Ex. 22 at p. 21.
7. Certain groups, such as those over 60 years of age and those with certain underlying
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medical conditions, are at higher risk of serious illness and death should they be infected. Ex. 21 at p.3.
8. People of every age are at risk of serious illness and possible death. Ex. 28 at p. 3.
9. The Latino community is particularly vulnerable to infection, hospitalization, and death
resulting from COVID- 19, due to a combination ofhigh prevalence ofunderlying medical conditions
and socioeconomic conditions that make contracting the disease more likely. Ex. 28 at p. 4. 10. Any place where people gather and cannot maintain physical distancing, such as a polling
place, represents a heightened danger for transmission of COVID- 19 disease. Ex. 21 at p. 3. Ex. 22
p. 14.
11. Crowding and exposure to a range of surfaces at the polls make polling places likely
transmission sites for the virus. Ex 21. at p. 2-3. Ex. 22 p. 14.
12. Pollingplaces will likelyremain transmission sites for the virus, even ifelection officials
use all reasonable preventive measures. Ex. 22 at p. 72. Ex. 22 at p. 64-70. 13. Requiring voters to remain in close proximity to other voters and election workers for
lengthy periods of time, particularly at polling locations with long lines and extended wait times would place them at risk of contracting or spreading COVID-19. Ex. 28 at p. 8.
14. This would be particularly true for those who are at a greater risk of complications and
death from COVID-19, including the elderly, immunocompromised, and people with underlying
health conditions, including many members of the Latino community. E. 28 at p. 8.
15. However, data to date in Texas demonstrate higher than expected infection rates in younger persons. Ex. 45. Ex. 22 at p. 42-44.
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16. Some infected persons do not appear to have any symptoms although they may still be able to infect others. Lx. 21 at p. 3. Ex. 23 at p. 5.
17. Meanwhile, other people with no pre-existing conditions are dying of stroke without ever
displaying the typical COVID-19 symptoms. Ex. 28.
18. COVJD-19 has become one of the leading causes of death in the United States. Ex. 48 atp. 1-2.
19. As of May 13, 2020, Texas has 41,048 reported cases of COVID-19.1 Lx. 44 at p.1. 20. As of April 25, 2020, the highest number of reported cases of COVJD-19 in Texas are
among 50 to 59-year-olds and 40 to 49-year-olds, with 2,568 reported cases and 2,620 reported cases, respectively. Ex. 45 at p. 1.
21. 20 to 29-year-olds represent 2,183 cases, while those aged 65 to 74 make up 1,292
reported cases in Texas. As of May 13, the State has seen 1,133 deaths from the virus. Ex. 44 at p. 1.Ex.45atp. 1.
22. Herd Immunity occurs when a high percentage of people in a community become
immune to an infectious disease. This can happen through natural infection or through vaccination.
In most cases, 80- 95% of the population needs to be immune for herd inmiunity to take place. Lx. 21 atp. 5.
23. "Herd Immunity" will not reduce the risk of COVID-19 during the 2020 elections. Ex. 21 atp. 6-7.
24. An FDA-approved vaccine will be available for at least 12-18 months. Therefore, a
vaccine will not reduce the risk of COVID-19 during the 2020 elections. Lx. 21 at p. 4-5.
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II. Voting by Mail Is Safe with No Risk of COVID-19 Transmission
25. There is no evidence the virus can be spread by paper, including mail. Ex. 21 at p. 7. 26. Voting by mail would prevent virus transmission between voters standing inline, signing in, and casting votes, as well as between voters and election workers. Ex. 21 at p. 7. Ex. 22 at p.
72-73. Ex. 22 atp. 183. Ex. 22 atp. 201. 27. Voting by mail would eliminate viral transmission through contamination of
environmental surfaces like voting machines. Ex. 21 at p. 7. Ex. 22 p. 72. Ex. 22 at p. 252-253. 28. Due to the pandemic, voting by mail is much safer for the public than voting in person.
Ex. 6 at p. 3. Ex. 22 at p. 182. Ex. 22 atp. 192-193. Ex. 22 atp. 234. Ex. 22 at p.237. Background of Voting by Mail in Texas
29. Texas law allows voting by mail for registered voters who meet one of the qualifications
stated in the Election Code. See Tex. Elec. Code Ch. 82.
30. A voter is qualified to vote by mail if he (1) anticipates being absent from his county of
residence on election day; (2) has an illness or other physical condition that disables him from appearing at the polling place; (3) is 65 or older; or (4) is confmed in jail. Tex. Elec. Code §
82.001-4. Ex. 1 atp. 2. Ex. 22 atp. 214. Ex. 22 atp. 243-244. Ex. 22 atp. 250.
31. Voters apply to vote by mail with a mail ballot application which they send to the early voting clerk. Tex. Elec. Code § 84.00 1
32. The early voting clerk is responsible for conducting early voting and must "review each application for a ballot to be voted by mail." Tex. Elec. Code § 86.00 1(a).
33. An early voting ballot application must include the applicant's name and the address at
which the applicant is registered to vote and an indication of the grounds for eligibility for voting
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by mail. Tex. Elec. Code § 84.002.
34. The applicant for a mail ballot must certif' that "the information given in this application
is true, and I understand that giving false information in this application is a crime." Tex. Elec. Code § 84.011.
35. It is a crime to "knowingly provide false information on an application for ballot by mail." Tex. Elec. Code § 84.0041.
36. Ifthe clerk determines the applicant is entitled to vote by mail, the clerk shall provide the
voter a ballot by mail. Tex. Elec. Code § 86.001.
37. If the voter is not entitled to vote by mail, the clerk shall reject the application and give
notice to the applicant. Id. 38. A rejected applicant is not entitled to vote by mail. Id. 39. July 2 is the deadline for an early voting clerk to receive an application to vote by mail
for the upcoming July 14, 2020 Democratic Party Run-Off. See Tex. Elec. Code § 84.007(c). Ex. 13 atp. 11.
40. Mail ballots are expected to start being sent to voters in response to their requests on May 30, 2020. Ex. 13 at p. 9.
41. Thousands ofvote-by-mail applications are being sent to early voting clerks across Texas.
Ex. 46 at p. 4-5. Election Officials Need Clarity to Prepare for Imminent Elections
42. Governor Abbott has set both the date of the special election for Senate District 14 in
Bastrop and Travis Counties and the Democratic Primary Run-Off election in all 254 Counties on July 14, 2020. Ex. 7 at p. 1. During both the primary and the November General Election state
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election law requires all ballot information be complete by 74 days before the election. Ex. 7 at p.

1. During that time, clerks must do all of the following:

*

proof ballot submissions, order races appropriately, merge with many jurisdictions

appearing on the ballot;

*

work with ballot companies to lay out for printing multiple ballot styles;

*

program ballot scanners, controllers, and related technology;

*

prepare ballot carriers for vote by mail applications and returned ballots for the use

of signature verification committees and ballot boards;

*

hire election workers for polling locations, early voting locations, and central

counting;

*

train all workers;

*

determine polling locations for election day and early voting, negotiate contracts with

locations;

*

manage payroll issues of dozens to thousands of temporary workers; and,

*

manage delivering and picking up equipment while keeping it secure and free from

tampering before, during and after the polling locations open and close. Ex. 7 at p.

1-2.

43. Prior to the commencement of the instant litigation, election administrators sought

guidance from the Secretary of State regarding the threat of COVID- 19 and the ability of voters to

obtain mail-ballots. Ex. 24 at p. 7. The Secretary did not provide such definitive guidance.
44. On April 6, 2020, the Secretary of State issued Election Advisory 2020-14, which left the

interpretation of the disability statute up to local election officials. This advisory remains the only

guidance from the Secretary of State to election officials pending the resolution of Defendants'

appeal of that litigation. It does not provide guidance to election officials if their interpretation is

correct or if counties should have a uniform interpretation of the statute. Ex. 1 at p. 2-4. 45. The State of Texas' Fourteenth Court of Appeals has ordered that the appeal in in the

state court case will be submitted by June 12, 2020,32 days prior to the primary runoff election date

and 20 days prior to the vote-by-mail application deadline for that election. Ex. 38 at p. 2.

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46. On May 13, 2020, the State of Texas filed a Petition for Writ of Mandamus in the Texas Supreme Court against only some of the counties in Texas and the Petition seeks to collaterally
attack the state district court injunction order while not including Plaintiffs as real parties in interest.
Ex 42. Sequence of Events Since the Outbreak in Texas. On May 15, 2020, the Justices again
blocked mail-in voting requests for people worried about contracting COVID-19, overturning the appellate court order from earlier in the week. The Texas Supreme court did not provide an explanation for issuing the stay.
47. On March 13, 2020, Defendant Abbott declared that COVID- 19 poses an imminent threat
of disaster. Ex. 2 at p. 2.
48. On March 19, 2020, Dr. John W. Hellerstedt, Commissioner ofthe Department of State Health Services, declared a state of public health disaster. The disaster declaration provided that
people not gather in groups larger than 10 members and limit social contact with others by social distancing or staying six feet apart. Ex. 4 at p. 1.
49. On March 19, 2020, Defendant Abbott closed schools temporarily. He also closed bars and restaurants, food courts, gyms and massage parlors. Ex. 3 at p. 3.
50. On April 27, 2020, Defendant Abbott issued a new order that purports to open the state's business affairs, in "phases." Ex. 43 at p. 1. He has indicated that case testing will be monitored and
that if and when cases begin to increase, the opening will be slowed and/or reversed.
51. Dr. Deborah Leah Birx, the Coronavirus Response Coordinator for the White House Coronavirus Task Force, has stated that "social distancing will be with us through the summer to really ensure that we protect one another as we move through these phases." Ex. 47 at p. 12.
52. The Texas Secretary of State only gives guidance to local election administrators about
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how the election laws apply. An advisory issued by the Secretary of State's Office instructed counties to begin preparing for larger than normal volumes of vote by mail while also giving
guidance to local officials to seek court orders, as appropriate, to adjust election procedures. Ex. 24
at p. 9.
53. In order to seek clarity of the requirements of state law, some of these Plaintiffs sought declaratory and injunctive relief in Texas district court in Travis County. Democratic Party v. DeBeauvoir, etal., No. D- 1 -GN-20-00 1610(201St Dist. Ct., Travis Cty., Tex. filed March20, 2020).
54. Texas intervened and asserted a Plea to the Jurisdiction based on standing, ripeness, and sovereign immunity. Ex. 33 at p. 2.
55. Texas argued in its Plea to the Jurisdiction that vote by mail administration is a county-level decision. Ex. 33 at p. 3.
56. On April 15, the state court heard the plaintiffs' temporary injunction motion and Texas'
plea to the jurisdiction. The state court verbally announced the denial of the plea to the jurisdiction and the granting of the temporary injunction.
57. In response to the oral order, Defendant Paxton made public a letter he had sent to the
Chair of the House Committee on Elections ofthe Texas House of Representatives. Ex. 55 at p. 1-5.
58. In the letter, Defendant Paxton gave anon-official, advisory opinion regarding whether the risk of transmission Of COVID- 19 would entitle Texas voters to cast a mail-in ballot. He stated:
"We conclude that, based on the plain language of the relevant statutory text, fear of contracting COVID- 19 unaccompanied by a qualif'ing sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail." Ex. 55 at p. 3.
59. In a statement accompanying the publication of the letter, General Paxton said: "I am
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disappointed that the district court ignored the plain text of the Texas Election Code to allow perfectly healthy voters to take advantage ofspecial protections made available to Texans with actual illness or disabilities. This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud. Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without needing assistance orjeopardizing their health. Fear of contracting COVID- 19 does not amount to a sickness or physical condition as required by state law." Ex. 55 at p. 1. Ex.35.
60. This statement and the actions of the State contributed to the uncertainty that voters and
early voting clerks face in administering upcoming elections. 61. The letter also threatened political speech by Texas Democratic Party ("TDP" or "the
Party") and other political actors in the state. Ex. 55 at p. 5. 62. The letter stated: "To the extent third parties advise voters to apply for a mail-in ballot
based solely on fear of contracting COVID- 19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041 ." Ex. 55 at p. 5.
63. The public statements and actions of the Defendant Paxton create a reasonable fear by
voters that they will be prosecuted. Ex. 8 at p. 7. 64. On May 1, 2020 after counties were following Judge Sulak's order, Defendant Paxton
issued another Guidance Letter which again purported to threaten Texans with criminal prosecution for following Judge Sulak's order. Ex. 34.
65. Given the public statements and actions by Defendant Paxton, a voter would reasonably
fear that he or she would face criminal sanction if he or she checks the disability box on a mail ballot application because of the need to avoid the potential contraction of the virus. Ex. 8 at p. 7.
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66. Given the public statements and action by Defendant Paxton, third party political actors
such as TDP have a reasonable fear of criminal sanction for assisting voters to apply for mail in
ballots in order to avoid exposure to COVID-19. Ex. 55 at p. 5. Texas Is a Large, Diverse State Whose Voters Need Protection
67. Texas is a large state, with a diverse pool of voters. As of July 1, 2019, there are 28,995,881 Texans. Ex. 29. People over the age of 65 are 12.6% of the population, or about 3,653,481 people. Id. Children below the age of 18 are 25.8% ofthe population, or 7,480,937 people. Id. Texans between age of 18 and 65 are 61.6% of the population, or 17,861,463 people. Id. On January 23, 2020, the Secretary of State announced that Texas had set a new state record of
registered voters with 16,106,984 registered voters. Id. Plaintiffs a. Texas Democratic Party
68. The TDP is a political party formed under the Texas Election Code.
69. The TDP is the canvassing authority for many of the imminent run-off elections to be
held on July 14, 2020.
70. The election ofJuly 14 is, in part, to determine runoff elections and therefore award the Democratic Party Nominations to those who prevail. Ex. 24 at p. 13.
71. TDP is the political home to millions of Texas voters and thousands of Texas' elected
officials. 72. The TDP expends resources to try to help its eligible voters vote by mail. Ex 7. 24 and
29.
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73. TDP is injured by the uncertainty of the laws associated with voting by mail because of the expenditure of financial resources used to help its members vote by mail, and the potential disfranchisement of its members. Ex 7. 24 and 29.
74. TDP is harmed by the state forcing it to award its nominations in an undemocratic process. Ex 7. 24 and 29. b. Gilberto Hinojosa
75. Gilberto Hinojosa is the elected Chair of the TDP. He is one of the administrators of the upcoming run-off elections for the Texas Democratic Party. Ex. 24 at p. 4. He is the head of the canvassing authority for the July run-off elections and is the leader of the Party by and through his
statutory and rule-based powers. 76. Chair Hinojosa is also a registered voter in Texas.
77. Chair Hinojosa is injured by the Defendants, because of the uncertainty of Texas law s
regarding qualifications to vote by mail. c. Joseph Daniel Cascino
78. Joseph Daniel Cascino is a Travis County voter who voted in Democratic primary election on March 3, 2020. Ex. 10 at p. 1
79. He intends to vote by mail in the upcoming run-offand general elections. Ex. 10 at p. 1-2.
80. He is not 65 years of age or older. Ex. 10 at p. 1.
81. He intends to be in Travis County during the early vote period and Election Day. Ex. 10
atp. 1
82. He has not been deemed physically disabled by any authority. Ex. 10 at p. 1.
83. He wishes to vote by mail because of the risk of transmission by COVID- 19 at polling
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places. Ex. lOatp. 2.
d. Shanda Marie Sansing 84. Shanda Marie Sansing is a Travis Countyvoter who voted in Democratic primary election
on March 3,2020. Ex. 9 at p. 1. 85. She intends to vote by mail in the upcoming run-off and general elections. Ex. 9 at p. 1-2. 86. She is not 65 years of age or older. Ex. 9 at p. 1. 87. She intends to be in Travis County during the early vote period and Election Day. Ex. 9
atp. 1
88. She has not been deemed physically disabled by any authority. Ex. 9 at p. 1.
89. She wishes to vote by mail because of the risk of transmission by COVJD-19 at polling places. Ex. 9atp. 2.
e. Brenda Li Garcia 90. Brenda Li Garcia is a Bexar County voter who has voted in Democratic primary, run-off,
and general elections in the past. Ex. 30. 91. She intends to vote by mail in the upcoming run-off and general elections. Ex. 30.
92. She is not 65 years of age or older. Ex. 30.
93. She intends to be in Bexar County during the early vote period and Election Day. Ex. 30.
94. She has not been deemed physically disabled by any authority. Ex. 30. 95. She wishes to vote by mail because of the risk of transmission by COVID- 19 at polling places. Ex. 30.
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Defendants a. The Honorable Gregg Abbott
96. The Honorable Gregg Abbott is the Governor of Texas and a defendant in this
case. 97. He is the chief executive officer in this State. Tex. Const. Art. IV § 1.
b. The Honorable Ruth Hughs
98. The Honorable Ruth Hughs is the Secretary of State of Texas and its chief election
officer. Tex. Elec. Code § 31.001.
99. Secretary Hughes has injured the plaintiffs by creating a lack of clarity and probable lack of uniformity in application of the election laws relating to mail ballot eligibility throughout the
State. c. The Honorable Ken Paxton
100. The Honorable Ken Paxton is the Attorney General of Texas and its chief legal officer.
Tex. Const. Art. IV § 22.
101. The Attorney General of Texas may investigate and assist local jurisdictions in
prosecuting election-related crimes. Tex. Elec. Code § 273.001 (d); 273.002. 102. Recently, General Paxton has issued a letter threatening "third parties {who] advise
voters to apply for a mail-in ballot based solely on fear of contracting COVID- 19, such activity could
subject those third parties to criminal sanctions imposed by Election Code." Ex. 55 at p. 5.
103. General Paxton has created a lack of clarity and probable lack of uniformity in application of the election laws relating to mail ballot eligibility throughout the State. 'Ex. 35.
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104. General Paxton's letter also threatens U.S. citizens for exercising their right to vote. Ex. 55 at p. 5. See also, Ex. 34. d. The Honorable Dana DeBeauvoir
105. The Honorable Dana DeBeauvoir is the Travis County Clerk. Ex. 15 at p. 1. 106. She is the early voting clerk for the upcoming run-off and general elections. 107. Clerk DeBeauvoir has been ordered by a Texas district court to issue voters like the plaintiffs a mail ballot. Ex. 49 at p. 5-6. e. Ms. Jacquelyn Callanen 108. Ms. Jacquelyn Callanen is the elections administrator for Bexar County.
109. She is the administrator of the run-off and general elections in Bexar County.
110. She is the early voting clerk that will grant or deny mail ballots to applicants in the coming elections.
CONCLUSIONS OF LAW I. All Plaintiffs Have Standing
1. This Court concludes that Plaintiffs have standing in this case because they all face an imminent risk of harm, the harm they face is fairly traceable to Defendants' conduct, and that harm is redressable by this Court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
2. Plaintiff Texas Democratic Party faces an imminent risk of harm as a result of the Defendants' interpretation of the Texas Elec Code. § 82.001-4. and Defendants' refusal to follow the Texas state court order permitting voters to access absentee ballots due to fear of COVID- 19. The Texas Democratic Party will be conducting their own run-off elections to determine who the
organization chooses as their standard bearer. Ex. 24 at p. 14: 10-24. The Texas Democratic Party
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has an interest in ensuring that their election is conducted in a manner that would not disenfranchise
voters nor put voters at risk of death and is harmed because under the Attorney General's interpretation of the statute and inability to follow the Texas state court law, the party's ability to run their primary is diminished. Ex. 24 at p. 15. An organization may establish injury-in-fact if the
"defendant's conduct significantlyand 'perceptiblyimpaired' the organization's ability to provide its
'activitieswith the consequent drain on the organization'sresources." NAACP v. City ofKyle, 626
F.3d. 233, 238 (5th Cir. 2010) (quotingHavens Realty Corp. v. Coleman, 455 U.S. 363,379(1982). The Texas Democratic Party's purpose is to promote Democratic candidates and facilitate elections for the party, promote voter participation among its members and the public more broadly (Ex. 29), and the interest the Party seeks to protect through this litigation are therefore germane to its purpose. This harm is plainly traceable to the Defendants who are refusing to follow the state court order and threatening voters who request or use an absentee ballot due to COVID- 19 with prosecution. Accordingly, the Texas Democratic Party has standing to sue Defendants. See Lujan, 504 U.S. at
3. The Texas Democratic Party also has standing to challenge the actions at issue both on
behalf of its members and its own behalf. An organization may establish injury-in-fact if the
"defendant's conduct significantly and 'perceptibly impaired' the organization's ability to provide its
'activitieswith the consequent drain on the organization's resources. "NAACP v. City ofKyle, 626
F.3d. 233,238(5th Cir. 2010) (quoting HavensRealty Corp. v. Coleman, 455 U.S. 363, 379(1982). The Texas Democratic Party's purpose is to promote Democratic candidates and facilitate elections for the party, promote voter participation among its members and the public more broadly (Ex. 29), and the interest the Party seeks to protect through this litigation are therefore germane to its purpose.
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4. Plaintiff Gilberto Hinojosa faces an imminent risk of harm as a result of the Defendants interpretation of the Texas Elec Code. § 82.001-4, and Defendant's refusal to follow the Texas state
court order permitting voters to use absentee ballots due to the COVID- 19 pandemic. Hinojosa is a registered Democrat, is planning to vote in the July 14th, 2020 runoff election, and is the elected
Chair of the Texas Democratic Party. Hinojosa is one of the administrators of the Texas Democratic Party run-off elections. Ex. 24 at p. 4. He is the head of the canvassing authority and is the leader of
the Party by and through his statutory and rule-based powers. Texas Election Code § 163.003-004.
Hinojosa is injured by the Defendants because the uncertainty of Texas law's regarding qualifications to vote by mail and the Attorney General's threat of prosecution ofthose who access
vote by mail ballots, even those permitted through the Texas state court order. Ex. 49 at p. 4-6. Ex. 55 at p. 1-5. Ex. 34 at p. 1-3. The evidence before this Court is that an injunction issued by the Court requiring the Defendants to permit the use absentee ballots under the Texas law due to COVID-19
and enjoin the Attorney General from threatening prosecution of voters who use absentee ballots
would redress the harm. Accordingly, Gilberto Hinojosa has standing to sue Defendants. See Lujan v. Defenders of Wildl(ft, 504 U.S. 55, 560-61 (1992).
5. Plaintiff Joseph Daniel Cascino faces an imminent risk of harm as a result of the Defendants interpretation of the Texas Elec Code. § 82.001-4. and Defendant's refusal to follow the
Texas state court order permitting voters to use absentee ballots due to the COVID- 19 pandemic. Cascino is a registered Democrat and Travis County voter who intends to vote by mail in the July
2020 run-off election and general election due to the risk of transmission by COVID- 19. Ex. 10 at p. 1-2 . Cascino is not 65 years of age, intends to be in Travis County during the early voting period and Election Day, and has not been deemed physically disabled by any authority. Ex. 10 at p. 1

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 52 of 74
Cascino is injured by Defendants because Defendant's interpretation ofthe Texas Election Code and
refusal to follow the state court order would disenfranchise him. He is further injured by the threat
of unjust prosecution by Attorney General Paxton. The evidence before this Court is that an
injunction issued by the Court requiring the Defendants to permit the use absentee ballots under the
Texas law due to COVID- 19 and enjoin the Attorney General from threatening prosecution ofvoters
who use absentee ballots would redress the harm. Accordingly, Joseph Daniel Cascino has standing
to sue Defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 55, 560-61 (1992). 6. Plaintiff Shanda Marie Sansing faces an imminent risk of harm as a result of the
Defendants interpretation ofthe Texas Elec Code. § 82.001-4. and Defendant's refusal to follow the
Texas state court order permitting voters to use absentee ballots due to the COVID- 19 pandemic. Sansing is a registered voter in Travis County and has voted in Democratic primary, run-off elections, and general elections in the past. Ex. 9 at p. 1. She intends to vote by mail in the upcoming
run-off elections and general elections. Ex. 9 at p. 1-2. She is not 65 years of age, intends to be in
Travis County during the early vote period and Election Day, and has not been deemed disabled by
any authority. Ex. 9 at p. 1. Sansing wishes to vote by mail due to the risk of transmission of
COVID- 19 at in-person polling places. Ex. 9 at p. 2. She is injured by Defendants because
Defendant's interpretation of the Texas Election Code and refusal to follow the state court order would disenfranchise her. She is further injured by the threat of unjust prosecution by Attorney
General Paxton. The evidence before this Court is that an injunction issued by the Court requiring the Defendants to permit the use absentee ballots under the Texas law due to COVID- 19 and enjoin
the Attorney General from threatening prosecution ofvoters who use absentee ballots would redress
the harm. Accordingly, Shanda Marie Sansing has standing to sue Defendants. See Lujan v.
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Defenders of Wildlife, 504 U.S. 55, 560-6 1 (1992). 7. Plaintiff Brenda Li Garcia faces an imminent risk of harm as a result of the Defendants
interpretation ofthe Texas Elec Code. § 82.001-4. and Defendant's refusal to follow the Texas state
court order permitting voters to use absentee ballots due to the COVID- 19 pandemic. Ex. 30. Garcia is a Bexar County voter. Id. She has voted in the Democratic primary, run-off elections, and general elections in the past and intends to vote by mail in the upcoming run-off and general elections. Id.
She is not 65 years of age or older. Id. She intends to be in Bexar County during the early voting period and Election Day. Id. She wishes to vote by mail because of the risk of transmission and contraction of COVID- 19 at in-person polling places. Id. She is injured by Defendants because Defendant's interpretation of the Texas Election Code and refusal to follow the state court order would disenfranchise her. She is further injured by the threat of unjust prosecution by Attorney General Paxton. The evidence before this Court demonstrates that counties view the orders of the Attorney General as mandatory, id., and thus, an injunction issued by the Court requiring the Defendants to permit the use absentee ballots under the Texas law due to COVID- 19 and enjoin the Attorney General from threatening prosecution ofvoters who use absentee ballots would redress the
harm. Accordingly, Brenda Li Garcia has standing to sue Defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 55, 560-61 (1992).
8. The claims asserted in this case do not require individualized proof as to every affected voter and cases that involve injunctive relief such as that sought here do not normally require individual participation. See Hunt v. Wash. State Apple Advertising Comm 'n, 432 U.S. 333, 343 (1977).
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9. The Texas Democratic Party has organizational standing to sue on its own behalfbecause Defendants' illegal acts not permitting voters to access mail ballots under the Texas state court order and under Texas Election Code and Attorney General Paxton' s thieats to prosecute voters, impair the Texas Democratic Party's ability to engage in its projects by forcing the organization to divert resources to counteract those illegal actions, such as by educating voters on their ability to access absentee ballots. Ex. 7, 24 and 29. Resource diversion is a concrete injury traceable to the Defendants conduct and redress can be provided by granting this injunction. See Havens Realty
I
Corp. v. Coleman, 455 U.S. 363, 379 (1982). And the Fifth Circuit has affirmed that "an organization may establish injury in fact by showing that it had diverted significant resources to counteract the defendant's conduct; hence, the defendant's conduct significantly and 'perceptibly impaired' the organization's ability to provide its 'activitieswith the consequent drain on the organization's resources." NAACP v. City ofKyle, Tex., 626 F.3d 233,238 (5th Cir. 2010) (quoting Havens Realty Corp., 455 U.S. at 379).
10. Further, all individual Plaintiffs have made clear in their declarations that they not only do intend to vote in the upcoming elections, but they intend to do so through absentee ballots and
will be disenfranchised due to fear of COVID- 19 if unable to access mail ballots or prosecuted for
accessing these ballots. Ex. 9 at p. 1-2. Ex. 10 at p. 1-2 and Ex. 30. The evidence before this court satisfies any requirement that "voters who allege facts showing disadvantage to themselves as individuals have standing to sue." See Gill v. Whitford, 138 5. Ct. 1916,1929 (2018).
11. Plaintiffs also satisf' the causation requirement of standing. KP. v. LeBlanc, 627 F.3d
115, 123 (5th Cir. 2010) (citations omitted) ("Because State Defendants significantly contributed to
the Plaintiffs' allegedinjuries, Plaintiffs have satisfiedthe requirement oftraceability."). Defendants'
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actions would significantly contribute, if not wholly cause, Plaintiffs' alleged injuries, i.e., their
inability to exercise their constitutional right to vote. II. A Preliminary Injunction Should Issue against Defendants while the Case Proceeds
12. This Court concludes that Plaintiffs should be granted a preliminary injunction pursuant
to its as-applied claims relating to: (1) the 26th Amendment ofthe U.S. Constitution; (2) vagueness in violation of the "Due Process" clause ofthe 5th and 14th Amendments; (3) voter intimidation in violation of 52 U.S.C. § 10307(b); and (4) the First Amendment of the U.S. Constitution.
13. Plaintiffs should be granted a preliminary injunction, because they have satisfied the four
requirements for such an injunction to issue: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury ifthe injunction is denied outweighs any hann that will result ifthe injunction is granted, and (4) that the grant ofan injunction will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442,445
(5th Cir. 2009).
a. Plaintiffs Are Likely to Succeed on the Merits of their Claims
i. Plaintiffs Are Likely to Succeed on their 26th Amendment Claim
14. The Twenty-Sixth Amendment states, "[t]he right of citizens of the United State, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on the account of age" (U.S. Const. amend. XXIV, § 1), and forbids the abridgement or denial of the right to vote of young voters by singling them out for disparate treatment. See Ownby
v. Dies, 337 F. Supp. 38, 39 (E.D. Tex. 1971). 15. Courts presented with claims arising under the Twenty-Sixth Amendment must apply
strict scrutiny. See United States v. Texas., 445 F. Supp. 1245,126 (S.D. Tex. 1978), affdsub nom.
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Symm v. United States, 439 U.s. 1105 (1979) (determining that a Texas registrar had violated the Twenty-Six Amendment by imposing burdens on students wishing to register to vote and providing that "before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny"); see also Lynch v. Donnelly, 465 U.S. 668, 687 n. 13 (1984) (holding that laws, statutes, or practices that are "patently
discriminatory on its face" will receive strict scrutiny.); League of Women Voters ofFla., Inc. v.
Detzner, 314 F. Supp. 3d 1205, 1221 (N.D. Fla. 2018) (finding that the Twenty-Sixth Amendment provides an "added protection to that already offered by the Fourteenth Amendment"). Under strict
scrutiny, the burden is on the State to justif' that its policy, statute, or decision is narrowly tailored to serve a compelling state interest. See League ofUnitedLatin Am. Citizens v. Perry, 548 U.S. 399,
475 (2006).
16. Texas statute creates two classes of voters, those under the age of 65 who cannot access a mail ballot under this law and those over the age of65 who can access mail ballots. Texas. Election Code § 82.003 states that "a qualified voter is eligible for early voting by mail if the voter is 65 years of age or older on election day." Those aged 65 and older are permitted to access mail ballots under this law on the account of their age alone, and those younger than 65 face a burden of not being able to access mail ballots on account of their age alone.
17. Plaintiffs complain that younger voters bear a disproportionate burden because the age
restrictions of Tex. Elec. Code § 82.003, that Tex. Elec. Code § 82.003 is a government classification based on age and discriminates against voters under the age of 65 based on age, and
that Tex. Elec. Code § 82.003 is prima facie discriminatory under all circumstances.
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18. However, in the Preliminary Injunction proceeding, Plaintiffs only seek relief, as applied during the pandemic.
19. The Court concludes, that during the COVID-19 pandemic, younger voters bear a
disproportionate burden because the age restrictions of Tex. Elec. Code § 82.003, that Tex. Elec.
Code § 82.003 is a government classification based on age and discriminates against voters under
the age of 65 based on age, and that Tex. Elec. Code § 82.003 violates the 26th Amendment, as
applied, during the COVID-19 pandemic.
20. COVID- 19 has become one of the leading causes of death in the United States. Data to
date in Texas demonstrates higher than expected infection rates in younger persons. General Paxton
has threatened to prosecute voters under the age of 65 who use mail ballots under the disability exemption as provided by the state court ruling. Ex. 8 at p. 7. Thus, younger voters who are just as
at risk to contract COVID- 19 are forced to choose between risking their health by voting in-person or facing criminal prosecution by Defendant Paxton.
21. As a result of Defendants actions, the right of people below the age of 65 to vote is I
uniquely threatened and burdened solely based on their age. Thus, this Court concludes that Tex. Elec. Code § 82.003 classification of voters by age is discriminatory, as applied, because it erects an obstacle to the franchise for younger voters.
22. Defendants have attempted to meet their burden of showing that their actions here satisfy
strict scrutiny, and they failed to do so. They presented no evidence that demonstrates a compelling governmental interest and instead provided confusing and conflicting reasoning behind why the state would bar younger voters from accessing mail ballots during a global, deadly pandemic. The State Is interest is particularly attenuated in this case, given that the data show that Texas aged under 65
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comprise a majority of the COVID-19 cases reported. Ex. 45 at p. 1. 23. In fact, the State's given reasoning would increase the harm to the public health and
safety of not only those Texans who are under the age of 65 and who would be unable to vote by mail, but also the safety of any Texans (even those over 65) who interact with individuals who voted
in person because they were unable to vote by mail and who were exposed to the COVID-19 virus. 24. Put simply, there is no compelling interest in imposing arbitrary obstacles on voters on
account of their age in these circumstances, and thus Defendants' conduct thus fails to meet strict
scrutiny. 25. This Court concludes that Plaintiffs have established that they are likely to succeed on
their as applied Twenty-Sixth Amendment claim.
26. Alternatively, even if strict scrutiny does not apply, defendants' conduct is unconstitutional as it intentionally discriminates against voters on the basis of age.
27. Where they have not applied strict scrutiny, federal courts have evaluated claims under the Twenty-Sixth Amendment using the Arlington Heights framework. See e.g. One Wis. Inst., Inc. v. Thomsen, 198 F.Supp.3d 896,926 (W.D. Wis. 2016) (finding that the Twenty-Sixth Amendment's text is "patterned on the Fifteenth Amendment.. . suggest[ing] that Arlington Heights provides the appropriate framework.").
28. Under the Arlington Heights test, the Court infers discriminatory intent through (1) the
impact of the official action and whether it bears more heavily on one group than another; (2) the historical background of the decision; (3) the specific sequences of events leading up to the decision
challenged in the case, including departures from normal procedures in making decisions and substantive departure; and (4) contemporarystatements made by the governmentalbody who created
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the official action. See Village ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
29. Defendants' decision to interpret the law in a discriminatory fashion and threaten criminal prosecution against those who advance a different determination is discriminatory particularly to
voters under the age of 65. That decision bears more heavily on voters under 65 especially during the COVID- 19 pandemic, because if they are unable to access mail ballots, they will be forced to risk their lives, the lives of their loved ones, and the lives of the public at-large in order to vote. The refusal to extend access to mail ballots to younger voters affirmatively disenfranchises thousands of Texas voters simply on the account of age. Voters age 65 and older will not face the same burden on the right to vote because they are able to access mail ballots and vote from the safety of their home, away from potential COVID- 19 carriers and spreaders. Voters under the age of 65 bear the burden of this application of the law more heavily than voters aged 65 and older because they will not be able to vote from the safety of their homes. Thus, the impact of the official action bears more heavily on younger voters than another groupolder voters.
30. The background of Defendants' decision also leads this Court to conclude there was discriminatory intent. Initially, a district court granted voters in Texas reliefto vote absentee due to
COVID-19 by a Texas state court judge. Ex. 49, p. 4-6. Despite this state court order, Attorney General Paxton issued an advisory, non-official opinion threatening to prosecute people and groups who complied with the state court ruling. Ex. 55. Defendant Paxton called the state court ruling an
"unlawful expansion of mail-in voting." General Paxton further opined that to help or advise a voter to seek a mail-in ballot pursuant to this provision of the Election Code was a crime. Defendant Paxton's decision to threaten criminal sanctions is strong evidence of invidious discrimination.
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31. Further, Defendants' actions regarding the state court proceedings are a departure from
the legal norm and policy procedure. The Attorney General rarely, if ever, "opine[s] through the formal opinion process on questions ... that are the subject ofpending litigation." In a highlyunusual
manner, Defendant Paxton circumvented the State's judicial process by announcing that he would
criminally prosecute voters in defiance of the emerging court order. These significant departures from normalcy were all in service ofpreventing legal, registered voters from casting ballots without
exposing themselves to a deadly virus. 32. Thus, Arlington Heights factors have been satisfied as to Defendants' conduct, and
Plaintiffs have established that they are likely to succeed on their claim that Tex. Elec. Code § 82.003 impermissibly discriminates on the basis ofage, as applied, in violation of the Twenty-Sixth Amendment. The Court also finds there is no rational basis for allowing voters 65 and over to mailin their ballots while denying eligibility to voters less than 65.
ii. The Plaintiffs Will Succeed on Their Denial of Free Speech Claim 33. This Court concludes that Plaintiffs are likely to prevail to prevail on their denial of free
speech claim.
34. Voters enjoy a "Right to Vote" as a form ofpolitical speech. Political speech, including the right to vote, is strongly protected as a "core First Amendment activity." League of Women Votersv. Detzner, 863 F. Supp.2dat 1158.
35. When determining whether there has been a violation of this right, the Court inquires as to (1) what sort of speech is at issue, and (2) how severe of a burden has been placed upon the speech. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Strict scrutiny is applied if the law "places a severe burden on fully protected speech and associational freedoms." Lincoln Club v. City of
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Irvine, 292 F.3d 934, 938 (9th Cir. 2002). "{V]oting is of the most fundamental significance under
our constitutional structure," meaning the speech at issue is fuiiy protected First Amendment activity.
Illinois Bd. ofElections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). 36. Political speech is at issue here. If not for Defendants' conduct, PlaintiffTDP (and other
campaigns and political groups) would be engaging in communications with voters concerning who is eligible to and how to vote by mail. Defendant Paxton has outwardly threatened to prosecute these communications. Ex. 55 at p. 3. Defendant Paxton has also threatened to criminally prosecute voters
who do not meet his construction of the statutory conditions to vote absentee who attempt to vote
by mail. 37. Meanwhile, at least one candidate for the Republican Nomination for a seat in Congress
has issued mailers encouraging all voters, regardless of Age, to vote by mail and her statements allege that she did so with advice from Defendant Paxton. Ex. 35. There is no evidence this Republican candidate is being criminally investigated or prosecuted or the county where much of the district at issue in the campaign is located, has been targeted by Defendant Paxton's letters and
Texas Supreme Court Petition. 38. These circumstances leave the Democratic Party and its candidates unsure whether only
Democrats will be prosecuted.
39. These circumstances, the evidence shows, hinders the free exchange ofpolitical speech. 40. The burden on this speech is severe. Under Defendant Paxton's interpretation of state law, voters face the choice between casting their ballot and paying the price of criminal prosecution. Especially given the visibility of the fallout from the Wisconsin primary election, voters are deeply
fearful.

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41. Defendants' conduct does not meet strict scrutiny, and thus Plaintiffs have established that they are likely to succeed on their claim that their right to freedom of political speech was denied. Indeed, Defendants' conduct cannot stand under any potential First Amendment standard.
42. Even were the state courts to clarif' the disability provision in favor ofvoters under the age of 65, in a timely fashion, which seems unlikely, the threats of prosecution, now widely
disseminated, would not be completely cured. iii. The Plaintiffs Will Succeed on Their Void for Vagueness Claim
43. This Court concludes that Plaintiffs are likely to succeed on their void for vagueness claim.
44. A statute violates the Fourteenth Amendment on the basis of vagueness if its terms "(1) 'fail to provide people ofordinary intelligence a reasonable opportunity to understand what conduct
it prohibits' or (2) 'authorize or even encourage arbitraryand discriminatory enforcement." Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972). When a statute infringes upon basic First
Amendment freedoms, "a more stringent vagueness test should apply." Id. at 246. 45. Criminal enactments are subject to a stricter vagueness standard because "the
consequences ofimprecision are.. . severe."Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498-499 (1982). Voters can face criminal prosecution under Tex. Elec. Code § 84.0041,
and thus a stricter vagueness standard applies to it. The law must be specific enough to give reasonable and fair notice in order to warn people to avoid conduct with criminal consequences. Smith v. Goguen, 415 U.S. 566, 574 (1974). A statute must also establish minimal guidelines to govern enforcement. Id. at 574.
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46. Tex. Elec. Code § 82.001-4 concerns the rightto vote, which is a form ofpolitical speech protected under the First Amendment. Thus, a more stringent vagueness test applies here as the
statute infringes upon basic First Amendment freedoms and voters are threatened with criminal prosecution.
47. Tex. Elec. Code § 82.001-4 provides that a voter is qualified to vote by mail if he (1) anticipates being absent from his county of residence on election day; (2) has an illness or other
physical condition that disables him from appearing at the polling place; (3) is 65 or older; or (4) is confined in jail. Tex. Elec. Code § 82.001-4. Tex. Elec. Code § 82.002(a) states "a qualified voter
is eligible for early voting by mail if the voter has a sickness of physical condition that prevents the voters from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health." Id. A Texas state courtjudge has stated that § 82.002(a) definition includes persons who are social distancing because of COVID- 19.
48. Defendant Paxton has issued varying and contradictory interpretations ofTex. Elec. Code § 82.001-4. Prior to the pandemic, Defendant Paxton advised that there was no specific defmition ofdisability required to be met in order to qualify to use an absentee ballot. Op. Tex. Att'y Gen. No. KP- 0009 (2015). Defendant Paxton has also previously opined that a court-ruled sexual deviant
under the age of 65 meets the definition of "disabled" under this statute. Op. Tex. Att'y Gen. No.
KP- 0149 (2017).
49. Defendant Paxton's recent interpretations of Tex. Elec. Code § 82.001-4 renders the statute vague as it is unclear which voters qualify to vote using a mail ballot under the law. The statute itself does not clearly define the phrase "physical condition that prevents the voters from
appearing at the polling place on election day." Tex. Elec. Code § 82.001-4. The multiple
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constructions of Tex. Elec. Code § 82.001-4 by Defendant Paxton and the state court fail to provide people of ordinary intelligence a reasonable opportunity to understand if they are unqualified to
access a mail ballot, and authorize and encourage arbitrary and discriminatory enforcement.
50. Every day that goes by, Texans are being subjected to criminal prosecuting threat if they
are under age 65 and seek to vote by mail before the July 2 deadline. 51. The statute does not establish minimal guidelines to govern enforcement by Defendants
or other state actors. Defendant Paxton has threatened to prosecute elected officials and voters who
access mail ballots as provided by the state court because of the COVID- 19 pandemic. He issued a
letter stating that "[tb the extent third parties advise voters to apply for a mail-in ballot based solely
on fearofcontracting COVID-19, such activity could subject those thirdparties to criminal sanctions imposed by Election Code section 84.0041." Defendant Paxton's repeated assertions ofprosecution of voters and threatening of election officials who seekto complywith a state court order is evidence of a lack of guidelines.
52. Voters have received conflicting instructions on their ability to access mail ballots; one from the Texas judiciary that orders voters who fear COVID- 19 to qualify for a mail ballot and instructions from Defendant Paxton which threatens voters who follow the Texas court order with prosecution.
53. Due Process has been violated as the interpretation by Defendant Paxton and the Election Code itself provide no definitive standard of conduct and instead provides Defendants with unfettered freedom to act on nothing but their own preference and beliefs.
54. Tex. Elec. Code § 82.001-4 is unconstitutionally vague in violation of the Fourteenth
Amendment Due Process Clause.
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55. Plaintiffs have established that they are likely to succeed on their claim that the State's interpretation of the law and the law itself are unconstitutionally vague in violation of the Due Process Clause.
iv. The Plaintiffs Will Succeed on Their Voter Intimidation Claim 56. This Court concludes that Plaintiffs are likely to succeed on their voter intimidation claim.
57. Title 42 U.S.C. § 1985, part of the Civil Rights Act of 1871, "creates a private civil remedy for three prohibited forms of conspiracy to interfere with civil rights under that section."
Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010). 58. Plaintiffmust prove the following elements for a claim under § 1985(3): (1) a conspiracy
of two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons ofthe equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or deprives her of a right or privilege of a United States citizen. See Hilliard v. Ferguson, 30 F.3d 649,
652 53 (5th Cir. 1994).
59. The right to vote in federal elections is a right of national citizenship protected from conspiratorial interference by the provision of 42 U.S.C. § 1985(3) pertaining to conspiracies to deprive persons ofrights orprivileges. See 42 U.S .C. § 1985(3) (preventingpersons from conspiring
to "prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner"); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958.
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60. Voters are legally entitled access to the franchise, and the right to vote is a fundamental right. Reynolds v. Sims, 377 U.S. 533, 56 1-562 (1964). This right entitles voters to access to the franchise free fromunreasonable obstacles. See Common Cause Ga. v. Billups, 406 F. Supp. 2d 1326 (ND. Ga. 2005); see also Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014).
61. Defendants have worked in concert with others in threatening criminal prosecution, an
act in furtherance of this conspiracy to deprive access to the franchise from legal, rightful voters.
This has injured Plaintiffs, and this injury has been caused by state officials acting in concert with
others to prevent legal voters from casting a ballot free from fear of risk of transmission of a deadly
illness or criminal retribution. 62. Defendant Paxton issued an advisory opinion just as a state court was ruling that Texas
voters are entitled to a mail-in ballot because of the risk of transmission of COVID- 19. Ex. 55 at
p.1. In this advisory opinion, Defendant Paxton wrote: "[Tb the extent third parties advise voters
to apply for a mail-in ballot based solely on fear of contracting COVID- 19, such activity could subject those third parties to criminal sanctions imposed byElection Code section 84.0041."Ex. 55
at p. 5. He also claimed that expanding mail ballot eligibility to all Texans "will only serve to
undermine the security and integrity of our elections." Defendant Paxton's statements operate to discourage voters from seeking mail-in ballots because of their fear of criminal sanction or victimization by fraud, and have the intention and the effect of depriving legally eligible voters'
access to the franchise.
63. Plaintiffs are likely to succeed on the merits of their claim that Defendant Paxton's official actions amount to voter intimidation in violation of Title 42 U.S.C. § 1985(3).
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v. The Defendants Violated the Equal Protection Clause of the 14th Amendment 64. The Defendants, who are state actors and/or acting under color or law as administrators of elections, have violated the Equal Protection Clause of the Fourteen Amendment by creating an unconstitutional burden on the fundamental right to vote for those under the age of 65.
65. The Equal Protection Clause "is essentially a mandate that all persons similarly situated must be treated alike." Rolfv. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). When a "challenged government action classifies or distinguishes between two or more relevant groups,"
courts must conduct an equal protection inquiry to determine the validity of the classifications. Quth
v. Strauss, 11 F.3d 488, 491 (5th Cir. 1993). 66. First, Defendants have unconstitutionally burdened Plaintiffs' right to vote as set forth
under the A nderson-Burdick analysis. 67. Because voting is a fundamental right (Harper v. Virginia State Bd. ofElections, 383
U.S. 663, 667 (1966)), state election laws or enactments that place a burden on the right to vote are evaluated under the Anderson-Burdick analysis. Under that analysis, a court must weigh "the
character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by the rule." Burdick v. Takushi, 504 U.S. at 434. If
the burden on the right to vote is severe, a court will apply strict scrutiny. The classification created by the state must promote a compelling governmental interest and be narrowly tailored to achieve
this interest if it is to survive strict scrutiny. Plyer v. Doe, 457 U.S. 202, 216-17 (1982).
68. Under strict scrutiny, Defendants are unable to supply any legitimate or reasonable
interest to justif' such a restriction. Defendants' proffered interests in denying millions of Texans

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 68 of 74
a mail-in ballot amidst a pandemic are that (1) mail-in ballots are a special protection for the aged or disabled and (2) mail ballots enable election fraud. Both reasons, even taken at face-value, fail to
outweigh the burden voters will face in exercising their right to vote before the threat of COVID- 19
can be realistically be contained. Moreover, Defendants fail to explain why, under their advanced
interests, that older voters are so highly valued above those ofyounger voters that the rampant fraud
Defendants claim mail-in voting provides is justified. 69. Further, the statutory interpretation espoused by Defendants is not narrowly tailored
enough to serve the proffered interests. Texas Election Code § 82.001, et seq., extends the "special
protection" of a vote by mail-in ballot to not just the aged or disabled but also to voters confined in jail, voters who have been civilly committed for sexual violence, and voters who are confined for
childbirth. 70. Second, mail-in ballots have built-in protections to ensure their security, including many
criminal penalties for their misuseprotections that Defendant Paxton has publicly expressed a willingness to pursue. Tex. Elec. Code § 86.001, et seq. "Even under the least searching standard of review we employ for these types of challenges, there cannot be a total disconnect between the
State's announced interests and the statute enacted." Veasey v. Abbott, 830 F.3d 216, 262 (5th Cir. 2016) (citing St. Joseph Abbey v. Castille, 712 F.3d 215, 225-26 (5th Cir. 2013)).
71. Even if this Court finds that this statute should receive only rational basis review, as is
appropriate where the burden is found to be more minimal, Defendants cannot proffer any rational
state interest to justif' their statutory interpretation. There is no rational state interest in forcing the majority of its voters to visit polls in-person during a novel global pandemic, thus jeopardizing their health (and the health of all those they subsequently interact with). There is certainly no rational
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interest in fencing out voters under the age of 65 because it would introduce rampant fraud, while
allowing older voters to utilize mail ballots and allowing the alleged rampant fraud therewith. Nor
do Defendants have a rational state interest in fencing out from the franchise a sector of the population because of the way they may vote, "The exercise of rights so vital to the maintenance ofdemocratic institutions' . . . cannot constitutionally be obliterated because of a fear ofthe political views of a particular group of bona fide residents." United States v. Texas, 445 F. Supp. 1245, 1260 (S.D. Tex. 1978), aff'd sub nom. Symm v. United States, 439 U.S. 1105 (1979). Furthermore, the
State has no interest in allowing a situation where the Attorney General can sow confusion, uneven election administration and threaten criminal prosecutions on these circumstances.
72. Thus, this Court concludes that Defendants, who are state actors and/or acting under color
or law as administrators of elections, have violated the Equal Protection Clause of the Fourteen
Amendment by creating an unconstitutional burden on the fundamental right to vote for those under the age of 65.
b. Without Preliminary Relief, Plaintiffs Are Suffering Irreparable Harm
73. This Court concludes Plaintiffs are suffering irreparable harm inthe absence ofinjunctive
relief.
74. Voting is a constitutional right for those that are eligible, and the violation of constitutional rights for even a minimal period of time constitutes irreparable injury justifiing the grant of a preliminary injunction. See DeerfieldMed. Ctr. v. City ofDeerfieldBeach, 661 F.2d 328, 338 (5th Cir. Unit B. Nov. 1981) (citing Elrod v. Burns, 427 U.S. 347,373 (1976); DeLeon v. Perry, 975 F. Supp. 2d 632,663 (W.D. Tex. 2014), aff'd sum nom. DeLeon v. Abbot, 791 F3d 619(5th Cir. 2015) ("Federal courts at all levels have recognized that violation ofconstitutional rights constitutes

Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 70 of 74
irreparable harm as a matter of law."); see also Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.").
75. In addition, forcing voters to unnecessarily risk their lives in order to practice their constitutional rights while allowing other voters a preferred status so that they do not have to face this same burden, is also irreparable injury.
76. Leaving the elections conditions as they are is itself a harm. TDP and these individual voters are held up, every day by the conflicting state court order and Attorney General's Paxton's guidance. If the Plaintiff voters apply for ballots by mail, right now, as they would otherwise be entitled to do, they subject themselves to criminal investigation. If they wait, they may miss the deadline, risk their application or ballot do no travel in the mail timely or otherwise gets held up with a last minute rush of vote by mail applications. Meanwhile, TDP is unable to counsel and advise its members as to who can vote in its primary runoff and how.
c. The Continued Injury if the Injunction is Denied Outweighs Any Harm that Will Result if the Injunction is Granted
77. This Court concludes that anyharm to Defendants is outweighed by the continued injury
to Plaintiffs if an injunction does not issue. 78. As explained above, the injury Plaintiffs are suffering in the absence of an injunction, is
severe. 79. No harm occurs when the State permits all registered, legal voters the right to vote by
utilizing the existing, safe method that the State already allows for voters over the age of 65. The Court also concludes that the local election administrators will suffer no undue burden if vote-by-

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mail is expanded. ifi. Preliminary Relief Will Serve the Public Interest
80. This Court concludes that the injunctive relief that Plaintiffs seek will not disserve the public interest, and, to the contrary, will serve the public interest because it will protect prevent violation ofindividuals' constitutional rights and will prevent additional cases of a deadly infectious disease that has already taken the lives of over a thousand Texans.
81. It is "always" in the public interest to prevent violations of individuals' constitutional rights, Deerfield Med. Ctr., 661 F.2d at 338-39, and it is in the public interest not to prevent the State from violating the requirements of federal law. Valle del So/Inc. v. Whiting, 732 F.3d 1006, 1029
(9th Cir. 2013); c.f Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (stating that protecting the right
to vote is ofparticular public importance because it is "preservative of all rights.") (citing Reynolds
v. Sims, 377 U.S. 533, 562 (1964)).
82. Moreover, it is the public policy of the State of Texas to construe any constitutional or
statutory provision which restricts the right to vote liberally: "[all! statutes tending to limit the citizen
in his exercise of this right should be liberally construed in [the voter'sl favor." Owens v. State ex rel. Jennett, 64 Tex. 500, 502 (1885). The public policy the State's executive branch attempts to
advance in this case does not appear clearly in any state legislative enactment. 83. Thus, an injunction against Defendants will serve the public interest.
N. Abstention is not Warranted
Abstention here is not warranted because resolution by the State court will not render this
case moot nor materially alter the constitutional questions presented. Plaintiffs allege injury of their federal constitutional rights in addition to injuries arising from the ambiguity of state law. A Texas
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state court has already interpreted the ambiguity of Texas' election code and many counties are complying. Yet, General Paxton's letter ruling is preventing meaningful political speech, confuses mail ballot applicants and leaves these voters having to risk criminal prosecution if they seek to protect their health by voting by mail. Meanwhile, vote by mail applications are being submitted daily and many counties, cities, and school districts are complying with Judge Sulak's ruling. Under these circumstances, abstaining from exercising federal court jurisdiction is not warranted.
Moreover, "[t]he abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise ofa court's
equity powers." Baggett v. Bullitt, 377 U.S. 360, 375 (1964). In fact, the stay of federal decision is "an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." County ofAllegheny v. FrankMashuda Co., 360 U.S. 185, 188 (1959) (quoted in Colorado River Water Conservation District v. United States, 424 U.S. 800,813 (1976)). As such, "abstention is the exception rather than the rule. . . ." Duncan v. Poythress, 657 F.2d 691, 697 (5th
Cir. 1981). Pullman abstention must be "narrow and tightly circumscribed" and is "to be exercised only
in special or 'exceptional' circumstances." Duke v. James, 713 F.2d 1506, 1510 (11th Cir. 1983). Nonetheless, "voting rights cases are particularly inappropriate for abstention," Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000), because in voting rights cases plaintiffs allege "impairment of [their] fundamental civil rights" Harman v. Forssenius, 380 U.S. 528, 537 (1965). Abstention is even more inappropriate where the inevitable delay it will cause could preclude resolution of the case before the upcoming elections. Detzner, 354 F. Supp. 3d at 1284 (citing Harman, 380 U.S. at 537).
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In this case, time is of the essencethe runoff election is mere weeks away, and the 2020
general election comes not long after. There is no guarantee that state court proceedings will be
completed in time and given the Attorney General's defiance ofthe state district court ruling, a final state court ruling would not fully vindicate Plaintiffs' federal constitutional rights.
Even if Defendants' reading of Tex. Elec. Code § 82.003 was plausible, it is not the sole, mandatory reading of the text, and the constitutional avoidance canon requires that it be rejected. "{W]hen one interpretation of a law raises serious constitutional problems, courts will construe the
law to avoid those problems so long as the reading is not plainly contrary to legislative intent." Pine
v. City of West Palm Beach, 762 F.3d 1262, 1270 (11th Cir. 2014). Resolution of the state court matters is neither "dispositive ofthe case" before this Courtnor would its resolution "materially alter
the constitutional questions presented" by Plaintiffs' claims. Siegel, 234 F.3d at 1174.
Presuming the Texas Supreme Court upholds the lower court's reading of Tex. Elec. Code § 82.001-4, and even if the Executive branch of the Texas government complies with this reading, this does not properly counsel for abstention. To find otherwise is to depend upon a series of questionable "mights." See Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1322 (11th Cir. 2017) (relying on United States v. Stevens, 559 U.S. 469,480 (2010), for the proposition that courts should not decline to enforce constitutional rights in reliance on the "benevolence" of enforcing officials). Additionally, even if this series of "mights" come to pass, that would not change the constitutional questions presented in this case. Plaintiffs allege that Texas' election code is prima facie discriminatory in violation of the United States Constitution, which is a matter only this Court
can resolve.
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Case 5:20-cv-00438-FB Document 90 Filed 05/19/20 Page 74 of 74 Abstention would take considerable time and meanwhile these Plaintiffs' constitutional speech, right to assemble as a political party and to vote, are all harmed. Abstention is inappropriate in this case, for the same reason that it is "particularly inappropriate" in voting cases. See Siegel, 234 F.3d at 1174. Constitutional "deprivations may not be justified by some remote administrative benefit to the State." Harman, 380 U.S. at 542. Therefore, Plaintiffs' injuries are redressable by this Court and abstention is not appropriate.
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 Case 5:20-cv-00438-FB Document 95 Filed 05/21/20 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY;

)

GILBERTO HINOJOSA, Chair of the

)

Texas Democratic Party; JOSEPH

)

DANIEL CASCINO; and SHANDA

)

MARIE SHANSING,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, Governor of Texas;

)

RUTH HUGHS, Texas Secretary of

)

State; DANA DEBEAUVOIR, Travis

)

County Clerk; and JACQUELYN F.

)

CALLANEN, Bexar County Elections

)

Administrator,

)

)

Defendants.

)

5:20-cv-00438-FB

DEFENDANT BEXAR COUNTY ELECTIONS ADMINISTRATOR JACQUE CALLANEN’S MOTION TO DISMISS

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Now comes Defendant Bexar County Elections Administrator Jacque Callanen,1 and files

this Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure.

BACKGROUND

1. Plaintiffs allege that the Texas Attorney General’s narrow definition of voter eligibility to

early vote by mail under Section 82.002 of the Texas Election Code impermissibly burdens their

1 Plaintiffs have named Jacque Callanen as a Defendant in this matter in her official capacity as the Elections Administrator of Bexar County. In so doing, any claims they have asserted against her are asserted against Bexar County. Rosas v. Bexar Cty., No. 5:14-CV-1082DAE, 2015 WL 1955406, at *3 (W.D. Tex. Apr. 29, 2015).

Texas Democratic Party et al. v. Greg Abbott et al. Defendant Jacque Callanen’s Motion to Dismiss 5:20-cv-00438-FB

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right to safely vote within the context of the ongoing COVID-19 pandemic. Plaintiffs seek a declaration that, unless voters concerned about contracting COVID-19 are permitted to vote by mail, the elections conditions created by the COVID-19 pandemic would violate Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 and the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments. Docket no. 9 at ¶¶ 79-103. Plaintiffs also allege that the Attorney General Paxton acted in furtherance of a conspiracy to suppress voting, in violation of 42 U.S.C. § 1985, by publishing a letter expressing his office’s opinion that fear of contracting COVID-19 does not qualify a voter to vote by mail and stating that “third parties [who] advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, . . . could [be] subject . . . to criminal sanctions imposed by Election Code section 84.0041.” Docket nos. 9 at ¶¶ 47-49, 104-10; 10-2 at 5-6. Plaintiffs seek an order prohibiting Defendants from “deny[ing] a mail in ballot to any Texas voter that applies for a mail-in ballot because of the risk of transmission of COVID-19” and that prohibits “Defendants, including General Paxton . . . from issuing threats to or seeking criminal prosecution of voters and others advising voters on mail ballot eligibility based on the risk of transmission of COVID-19.” Docket no. 10-5 at 2. 2. On May 15, 2020, the parties, including Defendant Callanen, appeared before the Court through counsel to submit evidence and arguments related to Plaintiffs’ request for preliminary injunctive relief. During the course of that hearing, counsel for Plaintiffs indicated that Plaintiffs do not contend that any local elections official, including Defendant Callanen, has improperly rejected the application of any voter seeking to vote by mail under Section 82.002 or otherwise burdened their right to vote. 3. On May 19, this Court has entered a Preliminary Injunction Order finding that Plaintiffs are likely to prevail on the merits of their facial and as-applied challenges to Chapter 82 of the

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Election Code and ordering that all eligible Texas voters who wish to vote by mail in order to avoid the possibility of COVID-19 exposure are eligible to do so for the duration of the COVID19 pandemic. Docket no. 90 at 10, 54-68. The State Defendants have filed a Notice of Appeal, docket no. 91, and the Fifth Circuit had temporarily stayed this Court’s preliminary injunction order. Docket no. 94.
LEGAL STANDARDS 4. Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal of claims over which the Court lacks subject matter jurisdiction. Plaintiffs, as the party asserting jurisdiction, bear the burden of showing subject matter jurisdiction. Choice Inc. of Texas v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012). To satisfy the standing component of subject matter jurisdiction, Plaintiffs must show that they have suffered an (1) injury in fact—“‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical’”—(2) that this injury is fairly traceable to the challenged conduct of the Defendant and (3) that it is likely to be redressed by a favorable judicial decision. Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, 937 F.3d 533, 537 (5th Cir. 2019) (quoting Gill v. Whitford, 138 S. Ct. 1916, 1928 (2018) and Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016)). In evaluating the existence of subject matter jurisdiction, the Court may consider the complaint alone, the complaint supplemented by undisputed facts, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Robinson v. TCI/US W. Commc’ns Inc., 117 F.3d 900, 904 (5th Cir. 1997). 5. The sufficiency of a pleading to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) is evaluated under the two-step process outlined by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). First,

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the Court must identify the Complaint’s factual allegations, which are assumed to be true, and distinguish them from any statements of legal conclusion, which are not entitled to the assumption of truth. Iqbal, 556 U.S. at 678, 680-81. Second, the Court must assess whether the assumed-astrue factual allegations set forth a plausible claim to relief. This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense” to determine whether “the well-pleaded facts . . . permit the court to infer more than the mere possibility of misconduct[.]” Iqbal, 556 U.S. at 679. Ultimately, the claim is subject to dismissal if it lacks “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS 6. In their written filings in this case, the Governor, Attorney General, and Secretary of State have represented that they “do not enforce Texas Election Code Section 82.002 or 82.003” and therefore “lack[] the requisite connection to the enforcement of” Section 82.002 that is required to invoke the Ex Parte Young exception to sovereign immunity as to Plaintiffs’ claims against them. Docket no. 39 at 19-23. Additionally, they contend that Plaintiffs lack standing to assert claims against them, in part because “[a]cceptance or rejection of an application to vote by mail falls to local, rather than State, officials” and Plaintiffs’ alleged injuries therefore “are not ‘fairly traceable’” to the State Defendants, but are “‘the result of the independent action of [a] third party’”—i.e., local elections officials such as Defendant Callanen. Docket no. 39 at 23-24 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The necessary implication of these arguments is that Plaintiffs’ claims are properly brought against local elections officials such as the Travis County Clerk and Bexar County Elections Administrator.

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7. The State Defendants’ position on these issues is contrary to controlling appellate authority, unsupported by state law, and undermined by Attorney General Paxton’s own previous opinions regarding the responsibilities of the Secretary of State under the Election Code. First, the position that invasions of federally secured rights caused by applications of the Texas Election Code are not traceable to or redressable by the State has been rejected by the Fifth Circuit as a “circular argument” that “misses the mark” because “[t]he facial invalidity of a Texas election statute is, without question, fairly traceable to and redressable by the State itself and its Secretary of State, who serves as the ‘chief election officer of the state.’” OCA-Greater Houston v. Texas, 867 F.3d 604, 613 & n.34 (5th Cir. 2017) (quoting Tex. Elec. Code § 31.003). As the state’s chief elections officer, the Secretary of State is empowered by state law to “obtain and maintain uniformity in the application, operation, and interpretation of [the Elections] code and of the election laws[,]” and to “prepare detailed and comprehensive written directives and instructions relating to and based on this code and the election laws” to guide elections administrators, county clerks, and other local officials tasked with administering elections. OCA, 867 F.3d at 613 & n.34 (citing Tex. Elec. Code § 31.003). Recognizing this same state law authority, Attorney General Paxton has previously observed in a formal opinion that “[t]he Texas Secretary of State is the entity tasked with administering and applying section 82.002.” Tex. Attn’y Gen. Op. No. KP-009 (2015). And, although the Attorney General now seeks to avoid judicial review by claiming to lack authority to enforce the Election Code, it was his public demands that local officials adhere to his unofficial interpretations of the Election Code or face the possibility of criminal prosecution by his office that partially triggered this litigation to begin with. 8. The Fifth Circuit made clear in OCA that facial challenges to the Texas Election Code are properly brought against the Secretary of State, not local elections officials. OCA, 867 F.3d at 613.

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The same is true of Plaintiffs’ as-applied claims, since the only application of Section 82.002 that Plaintiffs complain of is the Attorney General’s. The preliminary injunction record before the Court makes clear that Plaintiffs do not allege that Defendant Callanen or any local elections official has rejected any COVID-premised application to vote by mail. All parties are in agreement that local elections officials are not authorized by the Election Code to investigate the validity of voters’ disability claims—and even if they had such authority, local officials would not be able to identify and reject COVID-premised applications because, under the current administrative regime for early voting by mail, local elections officials are not even aware of the basis for voters’ claims of eligibility under Section 82.002. In short, Defendant Callanen and other local elections officials throughout the state have no “enforcement connection” with the challenged interpretation of Section 82.002—they do not have “any duty or ability to do anything” with respect to the State Defendants’ proposed limitations on vote-by-mail eligibility, and, for that reason, “the injury alleged by the plaintiffs is not, and cannot possibly be, caused by” them. OCA, 867 F.3d at 613 (quoting Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001) (en banc)). 9. The Eleventh Circuit’s recent opinion in Jacobson v. Fla. Sec’y of State, No. 19-14552, 2020 WL 2049076, at *9 (11th Cir. Apr. 29, 2020), is not inconsistent with this analysis. In that case, a group of voters challenged a Florida statute that governed the order in which candidates appeared on the ballot. Reversing the district court, the Eleventh Circuit found that Florida’s Secretary of State was not a proper defendant because Florida law placed the responsibility for printing the ballots with local Elections Supervisors, whereas the Secretary of State did not “play[] any role in determining the order in which candidates appear on ballots.” Jacobson, 2020 WL 2049076. Like the Florida Secretary of State in Jacobson, Defendant Callanen and local elections officials in Texas have neither the authority nor the ability to identify voters who apply to early

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vote by mail solely to avoid possible COVID-19 exposure. Defendant Callanen therefore does not play any role in enforcing the limitations on vote-by-mail eligibility that forms the basis for Plaintiffs’ claims against the State Defendants. And, unlike Attorney General Paxton, Bexar County and its Elections Administrator have not broadcasted to the public an opinion that voters wishing to avoid COVID-19 exposure who do not otherwise qualify to early vote by mail under Section 82.002 are not eligible to do so. Compare, e.g., docket nos. 10-2 at 2-6 (Attorney General’s April 15, 2020, Press Release); 75-1 (Attorney General’s May 1, 2020, unofficial guidance letter); and 49-1 at 1-6 (Bexar County Criminal District Attorney’s Opinion Regarding Section 82.002).
CONCLUSION 10. Plaintiffs have not alleged that Bexar County or its Elections Administrator have wrongfully rejected any application to early vote by mail, or indicated any intention to do so. Compare generally Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996) (when a public official is sued under § 1983, a plaintiff must allege “specific conduct and actions giving rise to a constitutional violation.”). For that reason alone, Bexar County and Elections Administrator Callanen should be dismissed from this case pursuant to Rule 12(b)(6). The undisputed record before the Court indicates that, under the current administrative regime for early voting by mail, local elections officials would not be able to identify and reject such applications even if instructed to by the Secretary of State. For these reasons, Plaintiffs have not identified any injury that is traceable to Defendant Callanen or redressable by her, and she should be dismissed from this case pursuant to Rule 12(b)(1).
WHEREFORE, PREMISES CONSIDERED, Defendant Bexar County Elections Administrator Jacque Callanen prays that this Court grant her Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and dismiss her from this litigation.

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Respectfully Submitted,
JOE GONZALES Bexar County Criminal District Attorney
By: /s/ Robert Green ROBERT D. GREEN Bar No. 24087626 Assistant District Attorney, Civil Division 101 W. Nueva, 7th Floor San Antonio, Texas 78205 Phone: (210) 335-2146 Fax: (210) 335-2773 robert.green@bexar.org Attorney for Defendant Bexar County Elections Administrator Jacque Callanen
CERTIFICATE OF SERVICE
I do hereby certify on the 21st day of May, 2020, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which provided electronic service upon all parties.
/s/ Robert Green ROBERT D. GREEN

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas,

§

Ken Paxton, Attorney General of Texas, §

Ruth Hughs, Texas Secretary of State,

§

Dana Debeauvoir, Travis County Clerk, and §

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

DEFENDANT RUTH HUGHS’S MOTION TO DISMISS

Defendant Ruth Hughs, in her official capacity as Texas Secretary of State, respectfully seeks the dismissal of the claims asserted against her in Plaintiffs’ First Amended Complaint (Doc. 9).1 For the reasons discussed below, the Pullman abstention doctrine calls for this Court to delay a ruling in this case pending the related state court litigation; the political question doctrine precludes the Court from resolving Plaintiffs’ claims; sovereign immunity bars Plaintiffs’ claims for injunctive relief; Plaintiffs lack standing; and Plaintiffs’ claims fail on the merits.
BACKGROUND A. Texas law allows voters to vote by mail only in limited circumstances.
Most Texas voters vote in person, either during early voting or on election day. Voters may apply to vote by mail in only one of four instances—if they: (1) anticipate being absent from their

1 The Secretary of State is the only State Defendant whose answer deadline is today, and accordingly, she is the only State Defendant filing a motion to dismiss at this juncture. The remaining State Defendants—the Governor and the Attorney General—will file their respective motions to dismiss when those motions are due.

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county of residence; (2) have a disability that prevents them from appearing at the polling place; (3) are 65 or older; or (4) are confined in jail. TEX. ELEC. CODE §§ 82.001-.004. “Disability” for the purposes of the Election Code is defined to allow a qualified voter to vote by mail if the “voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Id. § 82.002(a). B. The Texas Democratic Party brought suit in state court.
On March 23, 2020, the Texas Democratic Party (TDP) and two voters sued Travis County Clerk Dana Debeauvoir and the Secretary of State, seeking a declaration that the definition of “disability” in Section 82.002(a) of the Texas Election Code applies to all voters who “believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Doc. 10-3 at 7 (quoting state court petition). Plaintiffs voluntarily dismissed their state court case against the Secretary, id. at 8 n.7, and the State of Texas subsequently intervened in the case for certain, specified purposes.2
On April 17, 2020, after an evidentiary hearing, the Travis County district court ordered that any Texas voter “without established immunity [to COVID-19] meet[s] the plain language definition of disability” in the Texas Election Code, and thus, is eligible to apply for a mail-in ballot in the upcoming 2020 elections. Doc. 10 at 5. That order was immediately appealed, superseded, and thus stayed. Tex. R. App. P. 29.1(b). The Fourteenth Court of Appeals issued a new order, pursuant to Texas Rule of Appellate Procedure 29.3, which temporarily allowed the Travis County district court’s order defining “disability” under Section 82.002(a) of the Texas Election Code to take effect on May 14, 2020. See Doc. 86. But on May 15, 2020, the Texas Supreme Court granted the State’s emergency

2 Texas law takes a broader, more flexible view of intervention than does the Federal Rules of Civil Procedure. See State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (describing the “expansive” intervention standard in Texas). As a result, Texas’s limited intervention did not result in it becoming a full defendant in the Travis County action.

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motion for temporary relief and issued a stay of the Fourteenth Court of Appeals’s order pursuant to Texas Rule of Appellate Procedure 29.3.
Relatedly, In re State of Texas, No. 20-0394, in which the State has sought mandamus relief against five counties involving their compliance with the Texas Election Code, was argued in the Texas Supreme Court on May 20, 2020, with a decision to follow shortly thereafter. The case squarely addresses the interpretation of Section 82.002(a) of the Texas Election Code. See Doc. 50-1. C. Plaintiffs brought overlapping claims in this court.
Hedging against an unfavorable outcome in State court, Plaintiffs TDP, its Chair Gilberto Hinojosa, and three voters filed this action on April 7, 2020. See Doc. 1. Plaintiffs contend that the State of Texas’s “Election Conditions,” a term the complaint never defines, violate the Voting Rights Act, the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments, and are void for vagueness. Doc. 9 ¶¶ 79–110.
The Secretary defended against Plaintiffs’ motion for preliminary injunction (Doc. 10) at the hearing on May 15, 2020, and now seeks the dismissal of Plaintiffs’ claims in their entirety.3
ABSTENTION Though Plaintiffs’ current claims sound in federal law, they cannot be resolved without reference to the question posed in state court: whether fear of contracting COVID-19 constitutes a “disability” under the Texas Election Code. That question is squarely presented in the state court litigation and is currently before Texas’s civil court of last resort. In light of uncertainty about a predicate question of state law, this Court should abstain under Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). “The Pullman case establishes two prerequisites for Pullman abstention: (1) there

3 The Secretary of State preserves all arguments made in response to Plaintiffs’’ motion for preliminary injunction whether or not specifically repeated here. Moreover, to the extent the arguments herein have been rejected by the Court, the Secretary respectfully requests reconsideration of those arguments in light of the posture of this motion to dismiss and the allegations in Plaintiffs’ amended complaint. Cf. Holoway v. Triola, 172 F.3d 866, 866 (5th Cir. 1999) (“A district court may reconsider and reverse a previous interlocutory order at its discretion.”).

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must be an unsettled issue of state law; and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional questions raised.” Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980).
Plaintiffs have done all they can to manufacture uncertainty about eligibility to vote by mail under Texas law. If the Supreme Court of Texas permits broader eligibility to vote by mail, its ruling would put Plaintiffs’ claims “in a different posture,” if not moot them entirely. Id. That is because if the plaintiffs in prevail in state court, all Texas voters could be eligible to vote by mail. In turn, Plaintiffs’ constitutional claims here, which are based on the alleged disparities between voters who can vote by mail and voters who cannot in the unique context of COVID-19, will be moot.
Even if some claims might remain in the aftermath of the state courts’ interpretation of state law, that does not counsel against abstention: to the extent the State court litigation “would not ‘avoid in whole or in part the necessity for federal constitutional adjudication,’ it might ‘at least materially change the nature of the problem.’” Jackson, 617 F.2d at 431 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)); see also Moore v. Hosemann, 591 F.3d 741, 745 (5th Cir. 2009) (noting abstention standard that the state court proceedings “substantially modify the federal constitutional question”); Brooks v. Walker Cty. Hosp. Dist., 688 F.2d 334, 338 (5th Cir. 1982) (abstaining because “clarification of” state law “may have a considerable impact on the posture and ultimate resolution of . . . federal issues”).
COVID-19 has generated new issues for courts. Just last month, a federal court recognized the need for abstention in these extraordinary circumstances. Rather than decide federal constitutional questions, Judge Rosenthal abstained because “relevant state law is uncertain and will impact any argument in this court.” Russell v. Harris Cnty., 2020 WL 1866835, at *13 (S.D. Tex. Apr. 14, 2020). “[D]elicate considerations of federalism and separation of powers support abstention in this complex, rapidly evolving situation.” Id.

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The same reasoning applies here. Texas officials need space to enact policies that are responsive to and take full consideration of the evolving COVID-19 situation. Moreover, elected officials are better-equipped than courts to grasp the range of public health and social issues at play and craft appropriate policies to address them. And this is precisely their role in our representative democracy. For these reasons, this case presents an almost textbook illustration of the Pullman abstention doctrine. See Harris Cnty. Comm’r Court v. Moore, 420 U.S. 77, 84 (1975) (“Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law.”). Accordingly, Plaintiffs’ claims should be dismissed without prejudice until the state court proceedings conclude. See id. at 88 (explaining that because the Texas Supreme Court has ruled that “it cannot grant declaratory relief under state law if a federal court retains jurisdiction over the federal claim,” “we direct the District Court to dismiss the complaint”).
MOTION TO DISMISS STANDARD In addition to dismissal on abstention grounds, the Secretary seeks dismissal of the claims against her for lack of jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). And the party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “[A] court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.” Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009). In a motion to dismiss under Rule 12(b)(6), the court must “accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Great Plains Tr. Co. v. Morgan Stanley

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Dean Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002) (internal quotation marks and citation omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do[.]”Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and brackets omitted).
POLITICAL QUESTION DOCTRINE This case should be dismissed, first and foremost, because it presents political questions about the adequacy of the State’s response to COVID-19. Sometimes “the judicial department has no business entertaining [a] claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019) (quotation omitted). Such claims present nonjusticiable “political questions” because they are “outside the courts’ competence and therefore beyond the courts’ jurisdiction.” Id. “Among the political question cases the Court has identified are those that lack ‘judicially discoverable and manageable standards for resolving [them].’ ” Id. (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). Rucho held that partisan gerrymandering presented a political question for three reasons. First, “the Framers’ decision to entrust districting to political entities” precluded “hold[ing] that legislators cannot take partisan interests into account.” Id. at 2497. Thus, the relevant question is when political gerrymandering “has gone too far,” not whether it is permissible at all. Id. (quotation omitted). Second, courts cannot “even begin to answer” whether gerrymandering “has gone too far” unless they know the “fair” baseline from which to measure departures. Id. at 2500–01. Third, in the gerrymandering context, “fairness” could be defined in different ways, and “[t]here are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.” Id. at 2500. Similar concerns are at play in this case, which turns

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(at its core) on whether it is fair to ask voters to abide by Texas’s normal voting rules during this election cycle.
Indeed, the night before the preliminary injunction hearing in this case, the Northern District of Georgia dismissed a similar challenge to a state’s allegedly inadequate response to managing its elections in light of the COVID-19 pandemic. See Coalition for Good Governance v. Raffensperger, 2020 WL 2509092 (N.D. Ga. May 14, 2020). In that case, the plaintiffs sought a wide range of relief related to in-person and absentee ballots. Id. at *1. The court dismissed the plaintiffs’ claims pursuant to the political question doctrine. As the court explained, the “Framers of the Constitution did not envision a primary role for the courts in managing elections, but instead reserved election management to the legislatures.” Id. at *3. In the absence of “pellucid proof provided by plaintiffs that a political question is not at issue, courts should not substitute their own judgments for state election codes.” Id. And whether the executive branches had done enough to combat COVID-19 was a “classic political question involving policy choices.” Id. The court noted that “there are no discernable and manageable standards to decide issues such as how early is too early to hold the election or how many safety measures are enough.” Id. And “ordering Defendants to adopt Plaintiffs’ laundry list of so-called ‘Pandemic Voting Safety Measures’ would require the Court to micromanage the State’s election process.” Id. at *4.
The same reasoning applies with equal vigor here. Plaintiffs rely on a number of scientific studies to contend that elections in person cannot be held safely without also allowing a significant number of voters to vote by mail. Doc. 9 ¶¶ 3–9. In making those claims, Plaintiffs essentially ask this Court to determine whether the State’s efforts to combat COVID-19 in the context of elections have been adequate. There is no discernable measure or standard of “how many safety measures are enough,” and the Court cannot begin to answer that question without substituting its judgment for

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the judgment of the actors charged with making those decisions. For these reasons, the political question doctrine applies, and it renders Plaintiffs’ claims non-justiciable.
SOVEREIGN IMMUNITY It is unclear what actions Plaintiffs seek to enjoin, and against whom they request that injunction to apply. As best the Secretary can discern, Plaintiffs challenge the “Election Conditions” that are a result of the COVID-19 pandemic, because they seek to enjoin the Defendants from “giving any effect to the requirements of these Election Conditions, including enjoining Defendants from conducting any elections utilizing these Election Conditions.” Doc. 9 ¶ 113. The Secretary surmises from these allegations that Plaintiffs seek to enjoin enforcement of some provisions of the Texas Election Code, or, at a minimum, modify how they are enforced. But because the Secretary does not enforce the relevant provisions of the Texas Election Code, Plaintiffs’ claims against her are barred by immunity. “[T]he principle of state-sovereign immunity generally precludes actions against state officers in their official capacities, subject to an established exception: the Ex parte Young doctrine.” McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (citation omitted). Thus, Plaintiffs’ claims fail unless they fit that exception. Ex parte Young “rests on the premise—less delicately called a ‘fiction’—that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to that precise situation . . . .” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (citation omitted). As a consequence, Ex parte Young applies only when the defendant enforces the challenged statute. The “the general duty to see that the laws of the state are implemented” held by a statewide official (such as the Governor, Attorney General, or Secretary of State) is insufficient. See Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quotation marks omitted). Instead, the named defendant

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must have a “particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Id. (emphasis added; quotation marks omitted). As the Fifth Circuit has recently emphasized, even when a government official “has the authority to enforce” a challenged statute, a plaintiff still must show the official “is likely to do [so] here.” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). That is, without evidence that the named defendant is likely to enforce the law against these plaintiffs, the government official “lacks the requisite connection to the enforcement of ” the challenged law. Id. (quotations omitted).
Although the Election Code charges the Secretary of State with “obtain[ing] and maintain[ing] uniformity in the application, operation, and interpretation of this code,” TEX. ELEC. CODE § 31.003, it does not provide her the power to receive application for mail-in ballots, review those applications, or provide mail-in ballots. See, e.g., Tex. Elec. Code §§ 84.007(b), 86.001 (providing for Early Voting Clerks to implement the vote-by-mail provisions at the local level). Nor does it empower her to coerce local officials in their performance of those tasks. Instead, it authorizes the Secretary to “assist and advise all election authorities with regard to the application, operation, and interpretation of this code.” Id. § 31.004(a). Thus, the Secretary “maintain[s] an informational service for answering inquiries of election authorities relating to the administration of the election laws or the performance of their duties.” Id. § 31.004(b). The Secretary’s other powers would not allow her to coerce a local official in a case like this. E.g., id. § 31.005. Because she neither enforces the mail-in-ballot rules herself nor controls local officials’ enforcement, the Secretary lacks the requisite connection to the challenged law for purposes of Ex parte Young.
Instead, early-voting clerks are responsible for conducting early voting and must “review each application for a ballot to be voted by mail.” Id. § 86.001 (a). For most state- and county-wide elections, the county clerk or elections administrator is the early-voting clerk, while “[t]he city secretary is the early voting clerk for an election ordered by an authority of a city.” Id. § 83.005. Each early-voting

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clerk is responsible for determining whether an application to vote by mail complies with all requirements, providing notice and cure instructions to a voter who submits a noncompliant application, and “provid[ing] an official ballot envelope and carrier envelope with each ballot provided to a voter” who properly completes an application. Id. §§ 86.001(a), .008, .009, .002(a). Thus, the counties and political subdivisions, not State officials, are responsible for administering early voting in Texas.
But even if the Secretary could control local officials’ enforcement of the early voting laws, a federal court could not order her to exercise such power. The Ex parte Young exception is limited to prohibitory injunctions “prevent[ing] [a state official] from doing that which he has no legal right to do.” 209 U.S. at 159. It does not authorize mandatory injunctions directing “affirmative action.” Id.; see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949) (“Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.”). Thus, sovereign immunity bars “cases where the [defendant] sued could satisfy the court decree only by acting in an official capacity.” Zapata v. Smith, 437 F.2d 1024, 1026 (5th Cir. 1971); see also Jacobson v. Fla. Sec’y of State, -- F.3d --, 2020 WL 2049076, at *13 (11th Cir. Apr. 29, 2020) (explaining that “an injunction ordering the Secretary to promulgate a rule . . . . would have raised serious federalism concerns” and that “it is doubtful that a federal court would have authority to order it”). Because that is true here, Plaintiffs cannot overcome the Secretary’s immunity.4

4 To the extent that the Plaintiffs’ claims would require this Court to order state officials to comply with state (as opposed or in addition to) federal law, it is also barred by the principles announced in Pennhurst State School and State Hospital v. Halderman, 465 U.S. 89 (1984); Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (“TDCJ also is likely to succeed on appeal insofar as the district court enjoined the State to follow its own laws and procedures.”).

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STANDING For several reasons, Plaintiffs lack standing. First, Plaintiffs have failed to establish any cognizable injury and are essentially seeking an impermissible advisory opinion. They imply that they will be exposed to or contract COVID-19 at a polling site if they are required to vote in person, but those assertions are inherently speculative and ignore the measures that State and local officials will take, and indeed, have already taken, to ensure the safety of voters at polling locations. Plaintiffs’ allegations are therefore insufficient to confer standing. See, e.g., Galveston Open Gov't Project v. U.S. Dep't of Hous. & Urban Dev., 17 F. Supp. 3d 599, 606 (S.D. Tex. 2014) (“Unless and until someone who is going to be directly affected by the rebuilt public housing believes they are suffering an injury attributable to unlawful conduct, there is no ‘case’ or ‘controversy’ to resolve.”). Moreover, no Plaintiff has standing to pursue a race discrimination claim. Indeed, in their amended complaint, the three named Plaintiffs have not even pleaded membership in a protected racial group, let alone how they are being discriminated against on account thereof. Accordingly, Plaintiffs lack standing to sue for racial discrimination that they do not even plausibly allege or describe. With respect to Plaintiff TDP and its Chair, the complaint does not establish any basis upon which this Court can infer that the TDP has standing. TDP lacks associational standing because it has not identified any injured members. First, TDP has not established that it even has members within the meaning of the associational standing test. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 344 (1977) (requiring “indicia of membership”). TDP has not alleged that its purported members “elect leadership, serve as the organization’s leadership, and finance the organization’s activities, including the case’s litigation costs.” Tex. Indigenous Council v. Simpkins, 2014 WL 252024, at *3 (W.D. Tex. Jan. 22, 2014). Nor they do not allege that those individuals “participate in and guide the organization’s efforts.” Ass’n for Retarded Citizens of Dall. v. Dall. Cty. Mental Health & Mental Retardation

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Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994). The allegation that some of the individual Plaintiffs voted in a Democratic primary election is insufficient. See Doc. 9 ¶¶ 71–73.
Second, even if the individual Plaintiffs were members of TDP, they lack standing for the reasons explained above and below. Without injured members, TDP cannot have associational standing.5 See Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 536 (5th Cir. 2019).
TDP also does not have organizational standing. An organization lacks organizational standing unless it satisfies the same Article III requirements applicable to individuals: injury in fact, causation, and redressability. E.g., NAACP v. City of Kyle, 626 F.3d 233, 237 (5th Cir. 2010) (citing Lujan, 504 U.S. at 560–61). In an appropriate case, an organization can establish an injury in fact by showing that the challenged law conflicts with the organization’s mission and “perceptibly impair[s]” its activities. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
If an organization avoids the impairment of its activities by spending additional resources to combat the effects of the challenged law, then the “drain on the organization’s resources” may constitute an injury in fact. Id.; see City of Kyle, 626 F.3d at 238. But a diversion of resources is not a cognizable injury in fact unless the plaintiff “would have suffered some other injury if it had not diverted resources to counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010); see Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 379 (D.C. Cir. 2017) (“[A]ny resources [the organizational plaintiff] used to counteract the lack of a privacy impact assessment—an assessment in which it has no cognizable interest—were a self-inflicted budgetary choice that cannot qualify as an injury in fact.” (quotation omitted)). That is because a plaintiff “cannot manufacture standing by choosing to make

5 Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006), does not help Plaintiffs. That case found associational standing based on an identified candidate who “step[ped] into the shoes of” the TDP “after the primary election” and pursued a claim that a candidate from other party was improperly included on the ballot, thereby harming her prospects of winning an election. Id. at 588. Standing is claim specific, and Benkiser does not stand for the proposition that a party always has standing to challenge election rules.

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expenditures based on” an alleged harm that does not itself qualify as an injury in fact. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013).
TDP’s claims fail on both theories. It has not established what “Election Conditions” in Texas they are actually challenging, let alone how those “Election Conditions” cause TDP any cognizable injury-in-fact. In TDP’s motion for preliminary injunction, Plaintiffs claim they are “injured by the uncertainty of the laws associated with voting by mail[.]” Doc. 10 at 6–7. By TDP’s own admission, the injury is uncertain and therefore speculative, and the Party and its leaders therefore lack standing. See Lujan, 504 U.S. at 561 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)) (to have standing, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision’”).
Plaintiffs also cannot establish standing to sue the Secretary. As discussed above, acceptance or rejection of an application to vote by mail falls to local, rather than State, officials. Thus, Plaintiffs’ asserted injuries are not “fairly traceable to the challenged action of the defendant”; rather, they are “the result of the independent action of some third party not before the court.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quotation and alterations omitted). And the impact of the statutory scheme on a plaintiff is irrelevant for standing purposes; what matters is whether the named defendants enforce that scheme. See Okpalobi, 244 F.3d at 426 (majority op.) (dismissing claims for lack of standing and explaining that courts should not “confuse[] the statute’s immediate coercive effect on the plaintiffs with any coercive effect that might be applied by the defendants”); see also Paxton, 943 F.3d at 1002 (finding that it was “unlikely that the [plaintiff] had standing” to sue a state official who did not have the power to enforce the challenged statute).6

6 OCA-Greater Houston v. Texas does not help Plaintiffs because it found standing only for “facial” claims and only when there is “no private right of action.” 867 F.3d 604, 613 (5th Cir. 2017). Here, Plaintiffs bring several as-applied claims, and there is a relevant private right of action. Losing candidates can bring election contests to challenge the application of the statute. See TEX. ELEC. CODE § 221.003.

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Moreover, the Secretary did not cause any of the circumstances arising from the COVID-19 pandemic. In other words, she did not cause the “Election Conditions” that form the basis of Plaintiffs’ claims. She is thus not a proper defendant, because Plaintiffs challenge events that are wholly outside her control. Cf. Raffensberger, 2020 WL 2509092, at *3 n.4 (noting in the context of the political question doctrine that “[t]he real problem here is COVID-19, which all but the craziest conspiracy theorists would concede is not the result of any act or failure to act by the Government. And that fact is important when weighing the Defendants’ management of the election.”).
RULE 12(B)(6) DISMISSAL MOTION A. Plaintiffs have not pleaded viable race discrimination claims.
On the merits, Plaintiffs claim in Counts One through Three of their amended complaint that “Election Conditions” in the State of Texas discriminate on the basis of race and language minority in violation of the Voting Rights Act, the Fourteenth Amendment, and the Fifteenth Amendment. Doc. 9 ¶¶ 79–85. These bare-bones allegations do not put any defendant on notice of the basis for the claims against them. For example, there is no explanation of how the Secretary of State is discriminating on the basis of race or even which protected groups are allegedly being discriminated against. The complaint contains only legal conclusions devoid of any sufficient factual support. See Evans v. City of Meridian, Miss., 630 F. App’x 312, 315 (5th Cir. 2015) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements’ are not sufficient to survive a motion to dismiss” (citation omitted)). Because they do not meet their burden of alleging plausible claims for relief, those claims should be dismissed. B. Plaintiffs have not pleaded viable Anderson/Burdick claims.
Counts Four and Five of Plaintiffs’ amended complaint assert that the State has unconstitutionally burdened Plaintiffs’ right to vote, and also thereby violated Plaintiffs’ free speech rights. See Doc. 9 ¶¶ 86–94. In recent decades, the Supreme Court has evaluated First and Fourteenth

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Amendment challenges to state election laws under the “Anderson/Burdick” framework. See Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 420 U.S. 780 (1983). Under this standard, courts “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). State rules that impose a severe burden on constitutional rights must be “narrowly drawn to advance a state interest of compelling importance.” Id. “Lesser burdens, however, trigger less exacting review, and a State’s ‘important regulatory interests’ will usually be enough to justify ‘reasonable nondiscriminatory restrictions.’” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citations omitted).
For the same reasons Plaintiffs’ race discrimination claims fail, so too do their Anderson/Burdick claims. Plaintiffs fail to identify the burden on their right to vote, or grapple with how the State’s efforts to ensure voter safety at the polls will reduce the risk of COVID-19 transmission at polling sites throughout Texas. And, as the federal district court in Georgia noted, Plaintiffs’ claims are fundamentally different than the typical Anderson/Burdick allegation in that “this is not a case in which the state applied its own policy, adopted a rule, or enacted a statute that burdened the right to vote.” See Raffensberger, 2020 WL 2509092, at *3 n.4. Any burden on the right to vote, which the complaint does not describe, was not created by the government. See id.
In any event, the “the State . . . has a significant interest in enforcing its enacted laws.” True the Vote v. Hosemann, 43 F. Supp. 3d 693, 742 (S.D. Miss. 2014). Moreover, States must regulate elections uniformly “if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process[].”’ Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Thus, the State’s important interests in maintaining the rule of law, preventing fraud, and

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ensuring the orderly administration of elections suffices to establish the constitutionality of Texas’s election laws, especially in the face of Plaintiffs’ bare-bones and unspecific allegations of violations of the First and Fourteenth Amendments.
Accordingly, Plaintiffs’ First and Fourteenth Amendment claims fail to state claims for relief. C. Plaintiffs’ Twenty-Sixth Amendment claim fails.
The Twenty-Sixth Amendment provides that the “right of citizens of the United States, who are eighteen 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. Texas Election Code section 82.003, which allows voters who are 65 or older to vote early by mail, does not “deny or abridge” anyone’s right to vote. It is therefore subject to rational-basis review, which it easily satisfies.
No one, least of all the State, disputes that “voting is of the most fundamental significance under our constitutional structure.” Burdick, 504 U.S. at 433 (citations and quotation marks omitted). “It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.” Id. Consequently, “State action making it easier for some electors to vote—such as providing them an extended deadline to register for absentee ballots— doesn’t make it harder to vote for electors that don’t get the same benefit.” Mays v. LaRose, 951 F.3d at 783 (6th Cir. 2020).
It is perhaps unsurprising, then, that “there is no constitutional right to an absentee ballot.” Id. at 792 (citing McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807-09 (1969)). See also, e.g., Ray v. Texas, 2008 WL 3457021 (E.D. Tex. 2008) (“It is well-settled that voting by absentee ballot is not a fundamental right requiring strict scrutiny analysis.”) (citing McDonald, 394 U.S. 802); Crawford v. Marion Cty. Election Bd., 553 U.S. at 209 (Scalia, J., concurring in the judgment) (“That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence—not a constitutional imperative that falls short of what is required.”).

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In McDonald, the Supreme Court recognized the clear distinction between the right to register to vote and cast a ballot, and the ability to utilize a state’s absentee-ballot machinery. 394 U.S. at 807 The Court explained that “absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise[.]” Id. That the jailed plaintiffs in McDonald were unable to vote by mail did not implicate the right to vote because it did not “preclude[ ] [the plaintiffs] from voting” via other methods. Id. at 808; id. at 807 (“It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. . . .”). Thus, laws allowing certain groups to vote by mail cannot fairly be said to deny the franchise to those groups not included, and any burden on the fundamental right to vote is minimal and therefore subject to rational basis review. See id; see also, e.g., Burdick, 504 U.S. at 433.
Under rational basis review, so long as the distinctions made in the challenged law bear a rational relationship to a legitimate governmental end, the law must be upheld. Id. at 809. The Texas Election Code’s distinction between those aged 65 and over and those under 65 for purposes of voting by mail is rational. Even outside the context of COVID-19, individuals aged 65 and over (as a group) face unique challenges in attending the polls. For example, many live in nursing homes and have limited mobility.7 The State’s decision to allow older Texans to vote by mail without extending that privilege to everyone is a rational way to facilitate exercise of the franchise for Texans who are more likely to face everyday barriers to movement, outings, and activity than younger people.
Even if the stricter Anderson/Burdick standard applies, section 82.003 meets that standard. “To deem ordinary and widespread burdens severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of the States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Crawford, 553 U.S. at 197 (plurality). “The Constitution does

7 See Long Term Care, Texas Health and Human Services, available at https://hhs.texas.gov/services/aging/longterm-care (estimating that as many as 70 percent of people turning 65 can expect to use some form of long-term care during their lives).

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not require that result, for it is beyond question that the States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Id. (quotations omitted). The Texas Legislature has not provided for universal mail-in balloting, and the Constitution allows the Legislature that choice.
As the Supreme Court has explained: There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear. Id. at 196. Given Texas’s interest in ensuring uniform, orderly elections that are carried out consistent with State law, commanding election officials across 254 counties to hastily cobble together a universal vote-by-mail system in time for this year’s elections without the care and planning required risks widespread chaos. The Supreme Court has also stated that “[w]hile [the interest in the integrity and legitimacy of representative government] is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.” Id. at 197. Plaintiffs apparently believe it is irrational to allow mail-in voting for a limited class of people while also wanting to prevent election fraud. In fact, Texas’s system limits the class of eligible mail-in voters at a level that allows the State to monitor the process for fraudulent activity. If Texas suddenly and drastically expands the ability to vote by mail to every single adult citizen in the State, its ability to detect and prosecute election fraud will be greatly diminished by the deluge of mail ballots. Despite Plaintiffs’ claims to the contrary, the approach that has been carefully and extensively considered in the Texas Legislature is a perfectly logical balancing of these interests. As explained above, Section 82.003 in no way hampers Plaintiffs’ fundamental right to vote.

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Rather, it provides another avenue to cast a ballot for members of a community more likely to face special challenges voting in person. Under Anderson/Burdick, therefore, Section 83.003 places no burden upon Plaintiffs’ ability to cast a vote.
For these reasons, Plaintiffs’ Twenty-Sixth Amendment claim fails as a matter of law. D. The Texas Election Code is not unconstitutionally vague.
Plaintiffs’ “void-for-vagueness” claim in Count Six does not put the Secretary on notice of which specific provision of the Texas Election Code is unconstitutionally vague, nor attempt to meet the very high threshold to make such a claim. The Fifth Circuit has explained that the “void-forvagueness doctrine has been primarily employed to strike down criminal laws,” and that in the civil context, “the statute must be ‘so vague and indefinite as really to be no rule at all.” Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192, 217 (5th Cir. 2000) (quoting Senior Civil Liberties Ass’n v. Kemp, 965 F.2d 1030, 1036 (11th Cir. 1992)).
As the Fifth Circuit has noted, a “statute is not unconstitutionally vague merely because a company or an individual can raise uncertainty about its application to the facts of their case.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 509 (5th Cir. 2001); see also Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980) (“A provision need not . . . be cast in terms that are mathematically precise; it need only give fair warning of the conduct proscribed, in light of common understanding and practices.”). That is because the void-for-vagueness doctrine “does not ordain the unconstitutionality of a statute that two lawyers may read differently, nor does it mean that persons subject to the law may bank against . . . inconsistent decisions.” Nautilus Ins. Co. v. Int’l House of Pancakes, Inc., 622 F. Supp. 2d 470, 481 (S.D. Tex. 2009) (citation omitted). “[N]either absolute uniformity of interpretation, nor total absence of ambiguity is semantically or practically achievable, or, it necessarily follows [,] constitutionally required.” Id. (citation omitted).

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Plaintiffs allege that “[t]he Texas Election Code surrounding mail ballot eligibility are poorly defined, enforced, and understood.” Doc. 9 ¶ 96. This conclusory allegation, which does not even specify which provisions of the Election Code are at issue, does not meet Plaintiffs’ burden to put the Secretary on notice of the claims against her. See Fed. R. Civ. P. 8(a). Plaintiffs do not expand on this allegation or explain how any particular provision of the Election Code is unconstitutionally vague. Accordingly, Plaintiffs have failed to state a valid “void-for-vagueness” claim in Count Six of their complaint.
Moreover, Plaintiffs’ “as-applied” void-for-vagueness claim should not—indeed, cannot—be resolved prior to the resolution of the State court proceedings, which should ultimately provide clarity on the proper construction of Section 82.002(a) in the context of the COVID-19 pandemic, as Plaintiffs more specifically challenge in their motion for preliminary injunction. The Pullman abstention doctrine therefore applies with full force to this claim in particular. E. Plaintiffs do not allege that the Secretary has intimidated voters.
Finally, Plaintiffs’ allegations regarding voter intimidation in Count Eight of their complaint (mislabeled as a second Count Seven) appear directed exclusively towards the Attorney General. See Doc. 9 ¶¶ 104–110. Plaintiffs do not specifically mention the Secretary in that cause of action in their complaint, and there are no specific allegations (nor could there be) that the Secretary has somehow intimidated voters.
Accordingly, to the extent Plaintiffs’ Section 1985 voter intimidation claim is asserted against the Secretary, it should be dismissed.
CONCLUSION The Court should dismiss this suit without prejudice under the Pullman abstention doctrine. Alternatively, Plaintiffs’ claims should be dismissed for lack of jurisdiction or for failure to state a claim for which relief can be granted.

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Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/Michael R. Abrams MICHAEL R. ABRAMS Texas Bar No. 24087072 ANNE MARIE MACKIN Texas Bar No. 24078898 CORY A. SCANLON Texas Bar No. 24104599 Assistant Attorneys General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 michael.abrams@oag.texas.gov anna.mackin@oag.texas.gov cory.scanlon@oag.texas.gov
Counsel for State Defendants

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CERTIFICATE OF SERVICE I hereby certify that on May 21, 2020 a true and correct copy of the foregoing document was served via the Court’s CM/ECF system to all counsel of record.
/s/ Michael R. Abrams MICHAEL R. ABRAMS Assistant Attorney General

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 Case 5:20-cv-00438-FB Document 108 Filed 05/22/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic

§

Party, JOSEPH DANIEL CASCINO, SHANDA §

MARIE SANSING, and

§

BRENDA LI GARCIA

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, Governor of Texas; RUTH §

HUGHS, Texas Secretary of State, DANA

§

DEBEAUVOIR, Travis County Clerk, and

§

JACQUELYN F. CALLANEN, Bexar County §

Elections Administrator

§

Defendants.

§

Case No. 5-20:cv-00438-FB

RESPONSE TO RENEWED MOTION OF LEAGUE OF UNITED LATIN AMERICAN CITIZENS AND TEXAS LEAGUE OF
UNITED LATIN AMERICAN CITIZENS TO INTERVENE AS PLAINTIFFS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24
TO THE HONORABLE JUDGE BIERY: Notice is hereby given that Plaintiffs Texas Democratic Party, Gilberto Hinjosa, Joseph
Cascino, Shanda Sansing, and Brenda Li Garcia (“Plaintiffs”), do not oppose Plaintiff-Intervenors League of United Latin American Citizens and Texas League of United Latin American Citizens’ (“Plaintiff-Intervenors”) Renewed Motion to Intervene pursuant to Federal Rule of Civil Procedure 24. If permitted by this Court, while Defendants’ appeal of the Court’s limited Order Granting Preliminary Injunction is pending before the Fifth Circuit Court of Appeals, Plaintiffs intend to continue pursuing, if necessary, discovery and litigation on the merits of their race-based claims, including under Section 2 of the Voting Rights Act (“VRA”). Plaintiff-Intervenors’ proposed complaint raises issues of fact and law substantially related to those brought by Plaintiffs, including
1

Case 5:20-cv-00438-FB Document 108 Filed 05/22/20 Page 2 of 3
with respect to Section 2 of the VRA, and as such, Plaintiff-Intervenors do not oppose Plaintiffs’
participation in the litigation in this Court or on appeal.
Respectfully submitted,
TEXAS DEMOCRATIC PARTY
By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC SBN #: 24059153 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
2

Case 5:20-cv-00438-FB Document 108 Filed 05/22/20 Page 3 of 3 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been sent via the Court’s electronic filing system to all counsel of record on May 22 2020.
/s/ Chad W. Dunn Chad W. Dunn
3

 
 Case 5:20-cv-00438-FB Document 112 Filed 05/27/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas,

§

Ken Paxton, Attorney General of Texas, §

Ruth Hughs, Texas Secretary of State,

§

Dana Debeauvoir, Travis County Clerk, and §

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

DEFENDANT KEN PAXTON’S MOTION TO DISMISS

Defendant Ken Paxton, in his official capacity as Attorney General of Texas, respectfully seeks the dismissal of all claims asserted against him in this cause. See Plaintiffs’ First Amended Complaint (Doc. 9).1 For the reasons discussed below, the Pullman abstention doctrine calls for this Court to delay a ruling in this case pending the resolution of related state court litigation; the political question doctrine precludes the Court from resolving Plaintiffs’ claims; sovereign immunity bars Plaintiffs’ claims for injunctive relief; Plaintiffs lack standing; and Plaintiffs’ claims fail on the merits.
BACKGROUND A. Texas law allows voters to vote by mail only in limited circumstances.
Most Texas voters vote in person, either during early voting or on election day. Voters may apply to vote by mail in only one of four instances—if they: (1) anticipate being absent from their

1 As to the other State Defendants, the Secretary of State filed a motion to dismiss on May 21, 2020. See Doc. 107. It does not appear that Plaintiffs ever requested the issuance of summons for Governor Abbott. See Docs. 2–4, 6–8, 12–13 (reflecting Plaintiffs’ requests for issuance of summons as to other defendants but not Governor Abbott).

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county of residence; (2) have a disability that prevents them from appearing at the polling place; (3) are 65 or older; or (4) are confined in jail. TEX. ELEC. CODE §§ 82.001-.004. “Disability” for the purposes of the Election Code is defined to allow a qualified voter to vote by mail if the “voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Id. § 82.002(a). B. The Texas Democratic Party brought suit in state court.
On March 23, 2020, the Texas Democratic Party (TDP) and two voters sued Travis County Clerk Dana Debeauvoir and the Texas Secretary of State in state court, seeking a declaration that the definition of “disability” in Section 82.002(a) of the Texas Election Code applies to all voters who “believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Doc. 10-3 at 7 (quoting state court petition). The state court plaintiffs voluntarily dismissed their state court case against the Secretary, id. at 8 n.7, and the State of Texas subsequently intervened in the case for particular, specified purposes.2
On April 17, 2020, after an evidentiary hearing, the Travis County district court ordered that any Texas voter “without established immunity [to COVID-19] meet[s] the plain language definition of disability” in the Texas Election Code, and thus, is eligible to apply for a mail-in ballot in the upcoming 2020 elections. Doc. 10 at 5. That order was immediately appealed, superseded, and thus stayed. TEX. R. APP. P. 29.1(b). Texas’s Fourteenth Court of Appeals issued a new order, pursuant to Texas Rule of Appellate Procedure 29.3, which temporarily allowed the Travis County district court’s order defining “disability” under Section 82.002(a) of the Texas Election Code to take effect on May 14, 2020. See Doc. 86. But on May 15, 2020, the Texas Supreme Court granted the State’s emergency

2 Texas law takes a broader, more flexible view of intervention than the Federal Rules of Civil Procedure do. See State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (describing the “expansive” intervention standard in Texas). As a result, Texas’s limited intervention did not render it a defendant in the Travis County action.

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motion for temporary relief and issued a stay of the Fourteenth Court of Appeals order pursuant to Texas Rule of Appellate Procedure 29.3.
In response to the “public confusion” caused by the Travis County lawsuit, the Attorney General provided guidance to county election officials on May 1, 2020. Doc 75-1. “Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code,” he explained. Id. at 1. And the Attorney General further noted that the stayed state-court injunction “does not change or suspend these requirements.” Id. at 2–3; see also Doc. 10-2 (letter to the Honorable Stephanie Klick, Chair, Committee on Elections, setting forth the contours of Section 82.002(a) of the Texas Election Code).
Relatedly, In re State of Texas, No. 20-0394—in which the State has sought mandamus relief against five counties involving their compliance with the Texas Election Code—was argued in the Texas Supreme Court on May 20, 2020, with a decision expected to follow shortly. The case squarely addresses the interpretation of Section 82.002(a) of the Texas Election Code. See Doc. 50-1. C. Plaintiffs brought overlapping claims in this court.
Hedging against an unfavorable outcome in state court, Plaintiffs TDP, its Chair Gilberto Hinojosa, and three voters filed this action on April 7, 2020. See Doc. 1. Plaintiffs contend that the State of Texas’s “Election Conditions” (a term Plaintiffs do not define) violate the Voting Rights Act, the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments, and are void for vagueness. Doc. 9 ¶¶ 79–110.
Attorney General Paxton defended against Plaintiffs’ motion for preliminary injunction (Doc. 10) at the hearing on May 15, 2020, and now seeks the dismissal of Plaintiffs’ claims in their entirety.3

3 Attorney General Paxton re-urges and incorporates by reference as if fully set forth herein all arguments made in response to Plaintiffs’ motion for preliminary injunction. Moreover, to the extent the arguments herein have been rejected by the Court, Attorney General Paxton respectfully requests reconsideration of those arguments in light of the

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ABSTENTION Though Plaintiffs’ suit sounds in federal law, it cannot be resolved without reference to the question posed in state court: whether fear of contracting COVID-19 constitutes a “disability” under the Texas Election Code. That question is pending before Texas’s civil court of last resort, which will address it in short order. In light of uncertainty about a predicate question of state law, this Court should abstain under Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). “The Pullman case establishes two prerequisites for Pullman abstention: (1) there must be an unsettled issue of state law; and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional questions raised.” Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980). If the Texas Supreme Court permits broader eligibility to vote by mail, its ruling would put Plaintiffs’ claims “in a different posture,” if not moot them entirely. Id. That is because if the state court plaintiffs prevail, all Texas voters could be eligible to vote by mail. In turn, Plaintiffs’ constitutional claims here, which are based on the alleged disparities between voters who can vote by mail and voters who cannot in the unique context of COVID-19, will be moot. Even if some claims might remain in the aftermath of the state courts’ interpretation of state law, that does not counsel against abstention: Even if the State court litigation “would not ‘avoid in whole or in part the necessity for federal constitutional adjudication,’ it might ‘at least materially change the nature of the problem.’” Jackson, 617 F.2d at 431 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)); see also Moore v. Hosemann, 591 F.3d 741, 745 (5th Cir. 2009) (noting abstention standard that the state court proceedings “substantially modify the federal constitutional question”). Texas officials are charged with enacting policies that are responsive to and take full consideration of the evolving COVID-19 situation. Moreover, elected officials are better-equipped

posture of this motion to dismiss and the allegations in Plaintiffs’ amended complaint. Cf. Holoway v. Triola, 172 F.3d 866, 866 (5th Cir. 1999) (“A district court may reconsider and reverse a previous interlocutory order at its discretion.”).

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than courts to grasp the range of public health and social issues at play and craft appropriate policies to address them. And this is precisely their role in our representative democracy. For these reasons, this case presents an almost textbook illustration of the Pullman abstention doctrine. See Harris Cnty. Comm’r Court v. Moore, 420 U.S. 77, 84 (1975). Accordingly, Plaintiffs’ claims should be dismissed without prejudice until the state court proceedings conclude. See id. at 88.
MOTION TO DISMISS STANDARD Attorney General Paxton seeks dismissal of the claims against him for lack of jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). And the party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “[A] court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.” Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009). In a motion to dismiss under Rule 12(b)(6), the court must “accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002) (internal quotation marks and citation omitted). “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do[.]”Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and brackets omitted).
POLITICAL QUESTION DOCTRINE This case should be dismissed, first and foremost, because it presents political questions about the adequacy of the State’s response to COVID-19. Sometimes “the judicial department has no

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business entertaining [a] claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019) (quotation omitted). Such claims present nonjusticiable “political questions” because they are “outside the courts’ competence and therefore beyond the courts’ jurisdiction.” Id. “Among the political question cases the Court has identified are those that lack ‘judicially discoverable and manageable standards for resolving [them].’ ” Id. (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
Rucho held that whether an electoral map reflects unconstitutional partisan gerrymandering is a political question, for three reasons. First, “the Framers’ decision to entrust districting to political entities” precluded “hold[ing] that legislators cannot take partisan interests into account.” Id. at 2497. Thus, the relevant question is when political gerrymandering “has gone too far,” not whether it is permissible at all. Id. (quotation omitted). Second, courts cannot “even begin to answer” whether gerrymandering “has gone too far” unless they know the “fair” baseline from which to measure departures. Id. at 2500–01. Third, in the redistricting context, “fairness” is subject to differing interpretations, and “[t]here are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.” Id. at 2500. Similar concerns are at play in this case, which turns (at its core) on whether it is fair to ask voters to abide by Texas’s normal voting rules during this election cycle.
Indeed, the night before the preliminary injunction hearing, the Northern District of Georgia dismissed a similar challenge to a state’s allegedly inadequate response to managing its elections in light of COVID-19. See Coal. for Good Governance v. Raffensperger, 2020 WL 2509092 (N.D. Ga. May 14, 2020).4 In that case, the plaintiffs sought a wide range of relief related to in-person and absentee ballots. Id. at *1. The court dismissed the plaintiffs’ claims under the political question doctrine. As

4 The Plaintiffs since sought reconsideration of the court’s decision, which was denied on May 26, 2020. See Coal. for Good Governance v. Raffensperger, No. 1:20-cv-1677-TCB, Doc. 56 (N.D. Ga. May 26, 2020).

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the court explained, the “Framers of the Constitution did not envision a primary role for the courts in managing elections, but instead reserved election management to the legislatures.” Id. at *3. In the absence of “pellucid proof provided by plaintiffs that a political question is not at issue, courts should not substitute their own judgments for state election codes.” Id. And whether the executive branches had done enough in the context of COVID-19 was a “classic political question involving policy choices.” Id. The court noted that “there are no discernable and manageable standards to decide issues such as how early is too early to hold the election or how many safety measures are enough.” Id. And “ordering Defendants to adopt Plaintiffs’ laundry list of so-called ‘Pandemic Voting Safety Measures’ would require the Court to micromanage the State’s election process.” Id. at *4.
This reasoning applies with equal vigor here. Plaintiffs contend that in-person elections cannot be held safely unless any Texan who wishes may vote by mail. Doc. 9 ¶¶ 3–9. In making those claims, Plaintiffs essentially ask this Court to determine whether the State’s response to COVID-19 in the context of elections has been adequate. There is no discernable measure or standard of “how many safety measures are enough,” and the Court cannot begin to answer that question without substituting its judgment for the judgment of the actors charged with making those decisions. For these reasons, the political question doctrine applies, and it renders Plaintiffs’ claims non-justiciable.
SOVEREIGN IMMUNITY As best as can be discerned from their live pleading, Plaintiffs challenge the “Election Conditions” that are a result of the COVID-19 pandemic, because they seek to enjoin the Defendants from “giving any effect to the requirements of these Election Conditions, including enjoining Defendants from conducting any elections utilizing these Election Conditions.” Doc. 9 ¶ 113. These allegations suggest that Plaintiffs seek to enjoin enforcement of some provisions of the Texas Election Code, or, at a minimum, modify how they are enforced. But because the Attorney General does not administer Texas elections, immunity bars Plaintiffs’ claims against him.

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“[T]he principle of state-sovereign immunity generally precludes actions against state officers in their official capacities, subject to an established exception: the Ex parte Young doctrine.” McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (citation omitted). Thus, Plaintiffs’ claims fail unless they fit that exception. Ex parte Young “rests on the premise—less delicately called a ‘fiction’—that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to that precise situation . . . .” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (citation omitted).
As a consequence, Ex parte Young applies only when the defendant enforces the challenged statute. The “the general duty to see that the laws of the state are implemented” held by a statewide official (such as the Governor, Attorney General, or Secretary of State) is insufficient. See Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014). Instead, the named defendant must have a “particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Id. (emphasis added; quotation marks omitted). As the Fifth Circuit recently emphasized, even when a government official “has the authority to enforce” a challenged statute, a plaintiff still must show the official “is likely to do [so] here.” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). That is, without evidence that the named defendant is likely to enforce the law against these plaintiffs, the government official “lacks the requisite connection to the enforcement of ” the challenged law. Id. (quotations omitted).
General Paxton does not have authority to administer Texas elections. Cf. id. (“[T]his circuit’s caselaw requires some scintilla of ‘enforcement’ by the relevant state official with respect to the challenged law.”). General Paxton has concurrent jurisdiction with local prosecutors to prosecute election fraud. But Plaintiffs have made no allegations that General Paxton has either brought criminal enforcement proceedings for potential violations of the Election Code relating to COVID-19, or

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threatened to bring such criminal proceedings against them. Instead, they point to a letter in which General Paxton noted (in response to a question from a legislator) that “to the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041.” Doc. 10-2 at 6 (emphasis added). But General Paxton cautioned that “whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.” Id. Those caveats are critical; they make plain that General Paxton is not threatening criminal enforcement against any particular actor. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014) (noting to establish standing in a pre-enforcement context, the threat of enforcement against a particular plaintiff must not be “chimerical”).
But even if Attorney General Paxton could control local officials’ enforcement of the early voting laws, a federal court could not order him to exercise such power. The Ex parte Young exception is limited to prohibitory injunctions “prevent[ing] [a state official] from doing that which he has no legal right to do.” 209 U.S. at 159. It does not authorize mandatory injunctions directing “affirmative action.” Id.; see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949) (“Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.”). Because that would be the case here, Plaintiffs cannot overcome Attorney General Paxton’s immunity.5

5 To the extent that the Plaintiffs’ claims would require this Court to order state officials to comply with state (as opposed or in addition to) federal law, it is also barred by the principles explained in Pennhurst State School and State Hospital v. Halderman, 465 U.S. 89 (1984). See, e.g., Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (“TDCJ also is likely to succeed on appeal insofar as the district court enjoined the State to follow its own laws and procedures.”).

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STANDING For several reasons, Plaintiffs lack standing. First, Plaintiffs have failed to establish any cognizable injury and are essentially seeking an impermissible advisory opinion. They imply that voters will be exposed to or contract COVID-19 at a polling site if they are required to vote in person, but those assertions are inherently speculative and ignore the measures that State and local officials might take (and indeed, have already taken) to ensure the safety of in-person voting. Plaintiffs’ allegations are therefore insufficient to confer standing. See, e.g., Galveston Open Gov’t Project v. U.S. Dep’t of Hous. & Urban Dev., 17 F. Supp. 3d 599, 606 (S.D. Tex. 2014) (“Unless and until someone who is going to be directly affected by the rebuilt public housing believes they are suffering an injury attributable to unlawful conduct, there is no ‘case’ or ‘controversy’ to resolve.”). Moreover, no Plaintiff has standing to pursue a race discrimination claim. Indeed, in their amended complaint, the three named Plaintiffs have not even pleaded membership in a protected racial group, let alone how they are being discriminated against on account thereof. Accordingly, Plaintiffs lack standing to sue for racial discrimination that they do not even plausibly allege or describe. Plaintiffs do not establish any basis upon which this Court might conclude that TDP or its Chair has standing. TDP lacks associational standing because it has not identified any injured members. Indeed, TDP has not even established that it even has members within the meaning of the associational standing test. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 344 (1977) (requiring “indicia of membership”). And even if it had, TDP has not alleged that its purported members “elect leadership, serve as the organization’s leadership, and finance the organization’s activities, including the case’s litigation costs.” Tex. Indigenous Council v. Simpkins, 2014 WL 252024, at *3 (W.D. Tex. Jan. 22, 2014). Nor they do not allege that those individuals “participate in and guide the organization’s efforts.” Ass’n for Retarded Citizens of Dall. v. Dall. Cty. Mental Health & Mental

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Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994). The allegation that some of the individual Plaintiffs voted in a Democratic primary election is insufficient. See Doc. 9 ¶¶ 71–73.
Second, even if the individual Plaintiffs were members of TDP, they lack standing for the reasons explained above and below. Without injured members, TDP cannot have associational standing.6 See Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 536 (5th Cir. 2019).
TDP similarly lacks organizational standing. An organization lacks organizational standing unless it satisfies the same Article III requirements applicable to individuals: injury in fact, causation, and redressability. E.g., NAACP v. City of Kyle, 626 F.3d 233, 237 (5th Cir. 2010) (citing Lujan, 504 U.S. at 560–61). In an appropriate case, an organization can establish an injury in fact by showing that the challenged law conflicts with the organization’s mission and “perceptibly impair[s]” its activities. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
If an organization avoids the impairment of its activities by spending additional resources to combat the effects of the challenged law, then the “drain on the organization’s resources” may constitute an injury in fact. Id.; see City of Kyle, 626 F.3d at 238. But a diversion of resources is not a cognizable injury in fact unless the plaintiff “would have suffered some other injury if it had not diverted resources to counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010); see Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 379 (D.C. Cir. 2017) (“[A]ny resources [the organizational plaintiff] used to counteract the lack of a privacy impact assessment—an assessment in which it has no cognizable interest—were a self-inflicted budgetary choice that cannot qualify as an injury in fact.” (quotation omitted)). That is because a plaintiff “cannot manufacture standing by choosing to make

6 Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006), does not help Plaintiffs. That case found associational standing based on an identified candidate who “step[ped] into the shoes of” the TDP “after the primary election” and pursued a claim that a candidate from other party was improperly included on the ballot, thereby harming her prospects of winning an election. Id. at 588. Standing is claim specific, and Benkiser does not stand for the proposition that a party always has standing to challenge election rules.

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expenditures based on” an alleged harm that does not itself qualify as an injury in fact. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013).
TDP’s claims fail on both theories. It has not established what “Election Conditions” in Texas they are actually challenging, let alone how those “Election Conditions” cause TDP any cognizable injury-in-fact. In TDP’s motion for preliminary injunction, Plaintiffs claim they are “injured by the uncertainty of the laws associated with voting by mail[.]” Doc. 10 at 6–7. By TDP’s own admission, the injury is uncertain and therefore speculative, and the Party and its leaders therefore lack standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)) (to have standing, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision’).
Plaintiffs also cannot establish standing to sue Attorney General Paxton. As discussed above, acceptance or rejection of an application to vote by mail falls to local, rather than state, officials. Thus, Plaintiffs’ asserted injuries are not “fairly traceable to the challenged action of the defendant”; rather, they are “the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (quotation and alterations omitted). And the impact of the statutory scheme on a plaintiff is irrelevant for standing purposes; what matters is whether the named defendants enforce that scheme. See Okpalobi, 244 F.3d 405, 426 (5th Cir. 2001) (majority op.) (dismissing claims for lack of standing and explaining that courts should not “confuse[] the statute’s immediate coercive effect on the plaintiffs with any coercive effect that might be applied by the defendants”); Paxton, 943 F.3d at 1002 (finding that it was “unlikely that the [plaintiff] had standing” to sue a state official who did not have the power to enforce the challenged statute).
Moreover, the Attorney General did not cause any of the circumstances arising from the COVID-19 pandemic. In other words, he did not cause the “Election Conditions” that form the basis

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of Plaintiffs’ claims. He is thus not a proper defendant, because Plaintiffs challenge events wholly outside his control. Cf. Raffensberger, 2020 WL 2509092, at *3 n.4.
RULE 12(B)(6) DISMISSAL MOTION A. Plaintiffs have not pleaded a viable race discrimination claim.
On the merits, Plaintiffs claim that “Election Conditions” in the State of Texas discriminate on the basis of race and language minority in violation of the Voting Rights Act, the Fourteenth Amendment, and the Fifteenth Amendment. Doc. 9 ¶¶ 79–85. These bare-bones allegations do not put any defendant on notice of the basis for the claims against them. For example, there is no explanation of how the Attorney General is discriminating on the basis of race (or even which protected groups are allegedly being discriminated against). The complaint contains only legal conclusions devoid of sufficient factual support. See Evans v. City of Meridian Miss., 630 F. App’x 312, 315 (5th Cir. 2015) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements’ are not sufficient to survive a motion to dismiss” (citation omitted)). Because they do not meet their burden of alleging plausible claims for relief, those claims should be dismissed. B. Plaintiffs have not pleaded viable claims under the First and Fourteenth Amendments.
Plaintiffs further claim that the State has unconstitutionally burdened their right to vote, and also thereby violated their free speech rights. See Doc. 9 ¶¶ 86–94. In recent decades, the Supreme Court has evaluated First and Fourteenth Amendment challenges to state election laws under the Anderson/Burdick framework. See Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 420 U.S. 780 (1983). Under this standard, courts “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). State rules that impose a severe

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burden on constitutional rights must be “narrowly drawn to advance a state interest of compelling importance.” Id. “Lesser burdens, however, trigger less exacting review, and a State’s ‘important regulatory interests’ will usually be enough to justify ‘reasonable nondiscriminatory restrictions.’” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citations omitted).
For the same reasons Plaintiffs’ race discrimination claims fail, so too do their First and Fourteenth Amendment claims. Plaintiffs fail to identify the burden on their right to vote, or grapple with how the State’s efforts to ensure voter safety at the polls will reduce the risk of COVID-19 transmission at polling sites throughout Texas. And, as the federal district court in Georgia noted, Plaintiffs’ claims are fundamentally different than the typical election-related suit in that “this is not a case in which the state applied its own policy, adopted a rule, or enacted a statute that burdened the right to vote.” See Raffensberger, 2020 WL 2509092, at *3 n.4. Even if the Plaintiffs described any burden on their right to vote (they do not), it was not created by the government. See id.
In any event, States must regulate elections uniformly “if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process[].”’ Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Thus, the State’s important interests in maintaining the rule of law, preventing fraud, and ensuring the orderly administration of elections suffices to establish the constitutionality of Texas’s election laws, especially in the face of Plaintiffs’ bare-bones and unspecific allegations of violations of the First and Fourteenth Amendments.
Accordingly, Plaintiffs’ First and Fourteenth Amendment claims fail to state claims for relief. C. Plaintiffs’ Twenty-Sixth Amendment claim fails.
The Twenty-Sixth Amendment provides that the “right of citizens of the United States, who are eighteen 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. Texas Election Code section 82.003, which allows voters who are 65 or older to vote early by mail, does not “deny or abridge” anyone’s

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right to vote. It is therefore subject to rational-basis review, which it easily satisfies. No one, least of all the State, disputes that “voting is of the most fundamental significance
under our constitutional structure.” Burdick, 504 U.S. at 433 (citations and quotation marks omitted). “It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.” Id. Consequently, “State action making it easier for some electors to vote—such as providing them an extended deadline to register for absentee ballots— doesn’t make it harder to vote for electors that don’t get the same benefit.” Mays v. LaRose, 951 F.3d at 783 (6th Cir. 2020).
It is perhaps unsurprising, then, that “there is no constitutional right to an absentee ballot.” Id. at 792 (citing McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807-09 (1969)). See also, e.g., Ray v. Texas, 2008 WL 3457021 (E.D. Tex. 2008) (“It is well-settled that voting by absentee ballot is not a fundamental right requiring strict scrutiny analysis.”) (citing McDonald, 394 U.S. 802); Crawford v. Marion Cty. Election Bd., 553 U.S. at 209 (Scalia, J., concurring in the judgment) (“That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence—not a constitutional imperative that falls short of what is required.”).
In McDonald, the Supreme Court recognized the clear distinction between the right to register to vote and cast a ballot, and the ability to utilize a state’s absentee-ballot machinery. 394 U.S. at 807 The Court explained that “absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise[.]” Id. That the jailed plaintiffs in McDonald were unable to vote by mail did not implicate the right to vote because it did not “preclude[ ] [the plaintiffs] from voting” via other methods. Id. at 808; id. at 807 (“It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. . . .”). Thus, laws allowing certain groups to vote by mail cannot fairly be said to deny the franchise to those groups not included, and any burden on the fundamental right to vote is minimal

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and therefore subject to rational basis review. See id; see also, e.g., Burdick, 504 U.S. at 433. Under rational basis review, so long as the distinctions made in the challenged law bear a
rational relationship to a legitimate governmental end, the law must be upheld. Id. at 809. The Texas Election Code’s distinction between those aged 65 and over and those under 65 for purposes of voting by mail is rational. Even outside the context of COVID-19, individuals aged 65 and over (as a group) face unique challenges in attending the polls. For example, many live in nursing homes and have limited mobility.7 The State’s decision to allow older Texans to vote by mail without extending that privilege to everyone is a rational way to facilitate exercise of the franchise for Texans who are more likely to face everyday barriers to movement, outings, and activity.
Even if the stricter Anderson/Burdick standard applies, Section 82.003 satisfies it. “To deem ordinary and widespread burdens severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of the States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Crawford, 553 U.S. at 197. “The Constitution does not require that result, for it is beyond question that the States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Id. (quotations omitted). The Texas Legislature has not provided for universal mail-in balloting, and the Constitution allows the Legislature that choice.
As the Supreme Court has explained: There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.

7 See Long Term Care, Texas Health and Human Services, available at https://hhs.texas.gov/services/aging/longterm-care (estimating that as many as 70 percent of people turning 65 can expect to use some form of long-term care during their lives).

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Id. at 196. Given Texas’s interest in ensuring uniform, orderly elections that are carried out consistent with State law, commanding election officials across 254 counties to hastily cobble together a universal vote-by-mail system in time for this year’s elections without the care and planning required risks widespread chaos. The Supreme Court has also stated that “[w]hile [the interest in the integrity and legitimacy of representative government] is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.” Id. at 197.
Plaintiffs apparently believe it is irrational to allow mail-in voting for a limited group of people while also wanting to prevent election fraud. In fact, Texas’s system limits the group of eligible mailin voters at a level that allows the State to monitor the process for fraudulent activity. If Texas suddenly and drastically expands the ability to vote by mail to every single adult citizen in the State, its ability to detect and prosecute election fraud will be greatly diminished by the deluge of mail ballots. Despite Plaintiffs’ claims to the contrary, the approach that has been carefully and extensively considered in the Texas Legislature is a perfectly logical balancing of these interests.
As explained above, Section 82.003 in no way hampers Plaintiffs’ fundamental right to vote. Rather, it provides another avenue to cast a ballot for members of a community more likely to face special challenges voting in person. Under Anderson/Burdick, therefore, Section 83.003 places no burden upon Plaintiffs’ ability to cast a vote.
For these reasons, Plaintiffs’ Twenty-Sixth Amendment claim fails as a matter of law. D. The Texas Election Code is not unconstitutionally vague.
Plaintiffs’ “void-for-vagueness” claim does not put Attorney General Paxton on notice of which specific provision of the Texas Election Code is unconstitutionally vague, nor attempt to meet the very high threshold to make such a claim. The Fifth Circuit has explained that the “void-forvagueness doctrine has been primarily employed to strike down criminal laws,” and that in the civil

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context, “the statute must be ‘so vague and indefinite as really to be no rule at all.” Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192, 217 (5th Cir.2000).
As the Fifth Circuit has noted, a “statute is not unconstitutionally vague merely because a company or an individual can raise uncertainty about its application to the facts of their case.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 509 (5th Cir. 2001); see also Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980) (“A provision need not . . . be cast in terms that are mathematically precise; it need only give fair warning of the conduct proscribed, in light of common understanding and practices.”). That is because the void-for-vagueness doctrine “does not ordain the unconstitutionality of a statute that two lawyers may read differently, nor does it mean that persons subject to the law may bank against . . . inconsistent decisions.” Nautilus Ins. Co. v. Int’l House of Pancakes, Inc., 622 F. Supp. 2d 470, 481 (S.D. Tex. 2009) (citation omitted).
Plaintiffs allege that “[t]he Texas Election Code surrounding mail ballot eligibility are poorly defined, enforced, and understood.” Doc. ¶ 96. This conclusory allegation (which does not even specify which provisions of the Election Code are at issue) does not meet Plaintiffs’ pleading burden. See FED. R. CIV. P. 8(a). Plaintiffs do not expand on this threadbare allegation or explain how any particular provision of the Election Code is unconstitutionally vague. Accordingly, Plaintiffs have failed to state a valid “void-for-vagueness” claim.
Moreover, Plaintiffs’ “as-applied” void-for-vagueness claim should not—indeed, cannot—be resolved prior to the resolution of the State court proceedings, which should ultimately provide clarity on the proper construction of Section 82.002(a). The Pullman abstention doctrine therefore applies with exceptional force to this claim in particular. E. Plaintiffs do not plausibly allege that Attorney General Paxton has intimidated voters.
Finally, Plaintiffs’ allegations regarding voter intimidation also fail as a matter of law. See Doc. 9 ¶¶ 104–110. Plaintiffs contend that Attorney General Paxton has engaged in a conspiracy “for the

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purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” Id. ¶ 107.
To state a viable cause of action under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3)an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994) (emphasis added). “In so doing, the plaintiff must show that the conspiracy was motivated by a class-based animus.” Id. at 653. This claim fails for at least two reasons. First, Plaintiffs have made no allegations, and offered no evidence, that the purported conspiracy “was motivated by a class-based animus,” let alone against what class General Paxton was allegedly discriminating. Moreover, General Paxton cannot engage in a “conspiracy” with his own “employees, including the signatory to the letter in question”—the only supposed conspirators Plaintiffs have identified with any specificity elsewhere in their briefing. See Doc. 10 at 26. “It is a long-standing rule in this circuit that a ‘corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.’” Hilliard, 30 F.3d at 653 (citation omitted). Thus, the letter that Plaintiffs cite as evidence of conspiracy, which was written by an employee of the Office of the Attorney General, Doc. 10-2, is attributable to General Paxton. Under Section 1985, there can be no conspiracy between General Paxton and any agent. See id. Although Plaintiffs do assert that the “defendant state actors are part of a conspiracy,” Doc. 9 ¶ 106, Plaintiffs do not allege any facts at all demonstrating how the State Defendants have conspired with each other. Accordingly, that allegation alone cannot sustain Plaintiffs’ Section 1985 claim. See Evans, 630 F. App’x at 315. Second, Plaintiffs cannot establish that Attorney General Paxton has acted with the intent to deprive anyone of their vote. See id. When he explained that misapplication of the Election Code’s “disability” provision could implicate the Code’s criminal liability provisions, Attorney General

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Paxton’s purpose was to alleviate widespread public confusion. He simply stated the law regarding the giving of false information in connection with a request for a ballot by mail and even concluded by noting that “whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.” Doc. 10-2 at 6; Doc. 75-1 at 2. Plaintiffs’ characterization of this opinion as voter intimidation is belied by the actual content of Attorney General Paxton’s letter, and cannot serve as the basis for a viable claim under Section 1985.
Third, Plaintiffs do not even argue that the supposed conspiracy was motivated by racial animus. But the Fifth Circuit has held that “the only conspiracies actionable under section 1985(3) are those motivated by racial animus.” Cantu v. Moody, 933 F.3d 414, 419 (5th Cir. 2019) (quoting Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987)).
Ultimately, Plaintiffs’ allegations come nowhere close to meeting the standard required for a section 1985 claim. The Attorney General is not attempting to stop people from voting. Rather, the Legislature has established eligibility criteria for mail-in voting, and the Attorney General has explained the contours of the law in response to an inquiry from an elected official and widespread confusion about the accurate status of the law. Plaintiffs’ allegation is an impermissibly broad construction of the word “intimidate”—accepting this premise would mean that any time a state’s attorney general speaks about how election laws might apply, the attorney general has engaged in voter intimidation. See McLeod, 385 F.2d at 740. Such a construction would impermissibly impinge on the Office of the Attorney General’s ability to advise the public of its position on uncertain questions of public law.8
Accordingly, the Court should dismiss Plaintiffs’ voter intimidation claim against General Paxton.

8 Moreover, even if Plaintiffs had pleaded a violation of 52 U.S.C. § 10307(b) (they did not), such a claim fails on its merits. Accord United States v. Brown, 494 F. Supp. 2d 440, 474 (S.D. Miss. 2007) (Where county election administrator issued a press release listing 174 white voters who “might be challenged under the authority of Miss. Code Ann. § 23-15575 if they attempted to vote in the Democratic primary,” holding that “the court does not view the publication as the kind of threat or intimidation that was envisioned or covered by [52 U.S.C. § 10307](b).”

Defendant Paxton’s Motion to Dismiss

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CONCLUSION
For the forgoing reasons, Plaintiffs’ claims against General Paxton should be dismissed.
Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/Michael R. Abrams MICHAEL R. ABRAMS Texas Bar No. 24087072 ANNE MARIE MACKIN Texas Bar No. 24078898 CORY A. SCANLON Texas Bar No. 24104599 Assistant Attorneys General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 michael.abrams@oag.texas.gov anna.mackin@oag.texas.gov cory.scanlon@oag.texas.gov
Counsel for State Defendants

Defendant Paxton’s Motion to Dismiss

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CERTIFICATE OF SERVICE I hereby certify that on May 27, 2020 a true and correct copy of the foregoing document was served via the Court’s CM/ECF system to all counsel of record.
/s/ Michael R. Abrams MICHAEL R. ABRAMS Assistant Attorney General

Defendant Paxton’s Motion to Dismiss

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 Case 5:20-cv-00438-FB Document 111 Filed 05/27/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas,

§

Ken Paxton, Attorney General of Texas, §

Ruth Hughs, Texas Secretary of State,

§

Dana Debeauvoir, Travis County Clerk, and §

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

STATE DEFENDANTS’ RESPONSE TO LULAC AND TEXAS LULAC’S RENEWED MOTION TO INTERVENE

The Court previously denied the motion filed by LULAC and Texas LULAC (collectively,

“LULAC” or “putative intervenors”) to intervene prior to the hearing on Plaintiffs’ motion for

preliminary injunction. The Court’s ruling in this regard was sound, and LULAC’s renewed motion

for intervention does not warrant a different result. As before, putative intervenors cannot show that

they are entitled to intervene as of right because they have not shown the requisite adversity of interests

from Plaintiffs. Instead, they continue to seek the very same relief Plaintiffs request. Nor is permissive

intervention appropriate. The Court stated in its order denying LULAC’s first motion that it would

reconsider the intervention only “after the preliminary injunction issue is resolved in this Court and the

Fifth Circuit Court of Appeals[.]” Doc. 40 at 1 (emphasis added). The appeal of the Court’s preliminary

injunction order remains pending before the Fifth Circuit.1 Intervention at this juncture will not assist

in the resolution of the issues before the Court and thus should be denied.

1 See Tex. Democratic Party v. Abbott, No. 20-50407 (5th Cir. dkt’d May 20, 2020). State Defendants’ Response to Renewed Motion to Intervene

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Case 5:20-cv-00438-FB Document 111 Filed 05/27/20 Page 2 of 7
ARGUMENT A. Putative Intervenors Do Not Have a Right to Intervene.
To establish a right to intervene in a lawsuit, would-be intervenors must show that (1) the application is timely; (2) they have an interest related to the property or transaction that is the subject of the action; (3) the disposition of the action may impair or impede their ability to protect that interest; and (4) none of the existing parties adequately represents that interest. FED. R. CIV. P. 24(a). “Failure to satisfy one requirement precludes intervention of right.” Haspel & Davis Milling & Planting Co. Ltd. V. Bd. of Levee Comms’rs of the Orleans Levee District, 495 F.3d 570, 578 (5th Cir. 2007). A party seeking to intervene bears the burden to establish that he meets these requirements. See Saldano v. Roach, 363 F.3d 545, 551 (5th Cir. 2004).
A “presumption of adequate representation arises” where “the would-be intervenor has the same ultimate objective as a party to the lawsuit.” Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996). To overcome that presumption, “the applicant for intervention must show adversity of interest . . . on the part of the existing party.” Id. To show adversity of interest, in turn, “an intervenor must demonstrate that its interests diverge from the putative representative’s interests in a manner germane to the case.” Entergy Gulf States La., LLC v. U.S. EPA, 817 F.3d 198, 204 (5th Cir. 2016).
LULAC has not shown that Plaintiffs cannot adequately represent their interests. Indeed, both Plaintiffs and putative intervenors seek to expand Texas’s “vote-by mail eligibility policy in the context of the pandemic.” Compare, e.g., Doc. 30-2 at 21 (LULAC’s proposed complaint, seeking universal voting by mail for all voters, “whether or not the voter meets the Eligibility Criteria [in the Texas Election Code] for the duration of the COVID- 19 pandemic”) with Doc. 10 at 34 (Plaintiffs’ complaint requesting relief “to allow the plaintiffs and voters like the plaintiffs to be eligible to receive a mail ballot, to cast that ballot, and to have that ballot counted by the appropriate authority.”).

State Defendants’ Response to Renewed Motion to Intervene

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Because Plaintiffs and putative intervenors seek the same remedy—a mandatory injunction that would allow all voters in Texas to vote by mail—LULAC’s asserted interests are adequately represented here.
Although it is true, as putative intervenors note, that the Fifth Circuit has characterized a putative intervenor’s burden as “minimal,” id., that burden “cannot be treated as so minimal as to write the requirement completely out of the rule.” Texas v. United States, 805 F.3d 653, 661 (5th Cir. 2015) (citation and quotation marks omitted). In the face of a presumption of adequate representation, putative intervenors allege only vague and nebulous interests such as “pursuing their own legal theories and claims to protect their rights and the rights of their members” and a divergence in strategic legal decision-making. Doc. 93 at 9. This does not meet the burden of showing an actual divergence of interests within the meaning of Rule 24(a). See Edwards, 78 F.3d at 1005.2
Putative Intervenors also contend that because they are a nonpartisan group and Plaintiffs represent the interests of the Democratic Party, their interests are necessarily adverse for the purposes of Rule 24(a). While their respective organizations may represent different groups in society generally, that fact has nothing to do with whether these groups share the same ultimate objective as described above. Putative intervenors’ citation to Wal–Mart Stores, Inc. v. Tex. Alcoholic Beverage Commission does not support their position. 834 F.3d 562, 569 (5th Cir. 2016). In that case, a trade association was determined to have interests that were not adequately represented by a state agency in the defense of a statutory scheme that the trade association sought to defend. Id. The Fifth Circuit did not discuss the impacts of partisanship on whether intervention is warranted, and therefore, is inapposite. See id. Putative intervenors also cite Entergy Gulf State La., L.L.C. v. E.P.A. for the proposition that interests

2 Putative intervenors also argue, in a footnote, that if the State Defendants’ raise jurisdictional arguments, it is somehow improper for them to oppose LULAC’s intervention. Doc. 93 at 9 n.2. But “a person may not intervene if the original, underlying case was jurisdictionally defective.” Odle v. Flores, 899 F.3d 344, 348 (5th Cir. 2017) (citing Non Commissioned Officers Ass’n v. Army Times Publ’g Co., 637 F.2d 372, 373 (5th Cir. 1981)); see also id. (“‘[t]here is no right . . . to intervene in a [jurisdictionally] defective suit.’”) (quoting Truvillion v. King’s Daughters Hosp., 614 F.2d 520, 526 (5th Cir. 1980)) (alteration in Odle).

State Defendants’ Response to Renewed Motion to Intervene

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are adverse if the intervenor pursues a strategy that “would result in a ‘likely narrower ruling,’” but the putative intervenors do not even attempt to say what narrower ruling they might seek in the future. 817 F.3d 198, 205 (5th Cir. 2016). Speculative claims about what might be brought about in the future do not satisfy Rule 24(a)’s requirement that adversity be shown in the present case. Bush v. Viterna, 740 F.2d 350, 356–57 (5th Cir. 1984).
Allowing LULAC to intervene as of right would render the Fifth Circuit’s requirement of an “adversity of interest” completely meaningless. LULAC only speculates that, at some point, Plaintiffs’ representation may be inadequate because “it is far from obvious that [LULAC and Plaintiffs] will obtain all of the relief they seek.”3 E.g., Doc. 93 at 9 (conceding that “LULAC’s legal claims overlap in large part with the Party Plaintiffs[.]”). The Fifth Circuit has made clear that “adversity of interest must be shown in the present proceeding and may not be inferred from the possibility of adversity in some future proceeding.” Bush, 740 F.2d at 356–57. Putative intervenors’ unsubstantiated conjecture that Plaintiffs may, at some point, not fully represent their alleged interests—despite their virtually identical claims, and the fact that Plaintiffs seek all relief LULAC does—does not meet their burden of proof. Accordingly, LULAC is not entitled to intervene as of right under Rule 24(a). B. The Court Should Not Allow Permissive Intervention.
Alternatively, putative intervenors seek permissive intervention under Federal Rule of Civil Procedure 24(b). Permissive intervention is permitted upon a timely motion and where there is a common question of law or fact. FED. R. CIV. P. 24(b). But even when these requirements are met, “[p]ermissive intervention is wholly discretionary with the [district] court[.]” New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 470–71 (5th Cir. 1984).

3 Tellingly, in LULAC’s first motion to intervene, LULAC conceded that “LULAC Plaintiffs’ interest may overlap the interest of the Party Plaintiffs’ interest.” Doc. 30 at 9.

State Defendants’ Response to Renewed Motion to Intervene

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As the Court has already recognized, intervention should not be considered until resolution of the preliminary injunction matter by the Fifth Circuit. Doc. 40 at 1. The Court’s decision in this regard correctly recognizes that circumstances could change, placing the intervention question in a new light. Given the novel questions of constitutional and state law involved in this lawsuit, a fuller exposition by a higher court will better inform the resolution of this matter. Furthermore, the fluid nature of developments concerning both COVID-19 and the government’s response could also present these important questions in a different posture in the near future. Therefore, the Court should maintain its present course and delay consideration of the intervention until the preliminary injunction has been resolved in the Fifth Circuit. See id.
CONCLUSION The Court should deny LULAC Intervenors’ renewed motion to intervene.

State Defendants’ Response to Renewed Motion to Intervene

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Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Michael R. Abrams MICHAEL R. ABRAMS Texas Bar No. 24087072 ANNE MARIE MACKIN Texas Bar No. 24078898 CORY A. SCANLON Texas Bar No. 24104599 Assistant Attorneys General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 michael.abrams@oag.texas.gov anna.mackin@oag.texas.gov cory.scanlon@oag.texas.gov
Counsel for State Defendants

State Defendants’ Response to Renewed Motion to Intervene

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Case 5:20-cv-00438-FB Document 111 Filed 05/27/20 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that on May 27, 2020 a true and correct copy of the foregoing document was served via the Court’s CM/ECF system to all counsel of record.
/s/ Michael R. Abrams MICHAEL R. ABRAMS Assistant Attorney General

State Defendants’ Response to Renewed Motion to Intervene

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Case 5:20-cv-00438-FB Document 111-1 Filed 05/27/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Texas Democratic Party, Gilbert Hinojosa, §

Chair of the Texas Democratic Party,

§

Joseph Daniel Cascino, Shanda Marie

§

Sansing, and Brenda Li Garcia,

§

Plaintiffs,

§

§

v.

§

§

Greg Abbott, Governor of Texas,

§

Ken Paxton, Attorney General of Texas, §

Ruth Hughs, Texas Secretary of State,

§

Dana Debeauvoir, Travis County Clerk, and §

Jacquelyn F. Callanen, Bexar County

§

Elections Administrator,

§

Defendants.

§

Civil Action No. 5:20-CV-00438-FB

ORDER DENYING LULAC AND TEXAS LULAC’S RENEWED MOTION TO INTERVENE

On this day the Court considered the renewed motion to intervene filed by the League of

United Latin American Citizens and Texas League of United Latin American Citizens. After

considering the motion and any responses, the Court concludes that the motion should be, and hereby

is, DENIED.

Signed on this

day of

, 2020.

HON. FRED BIERY UNITED STATES DISTRICT JUDGE

 
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 No. 19A-_____
IN THE SUPREME COURT OF THE UNITED STATES
Brenda Li Garcia; Joseph Daniel Cascino; Shanda Marie Sansing; Texas Democratic Party; and Gilbert Hinojosa, Chair of the Texas Democratic Party,
Applicants, v. Greg Abbott, Governor of Texas; Ruth Hughs, Texas Secretary of State; and Ken Paxton, Attorney General of Texas,
Respondents.

APPLICATION TO VACATE THE FIFTH CIRCUIT’S STAY OF THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS _______________________________

Jeffrey L. Fisher Brian H. Fletcher Pamela S. Karlan STANFORD LAW SCHOOL SUPREME
COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
Robert Leslie Meyerhoff TEXAS DEMOCRATIC PARTY 314 E. Highland Mall Blvd., #508 Austin, TX 78752
Martin Golando THE LAW OFFICE OF MARTIN GOLANDO PLLC 405 N. St. Marys Street San Antonio, TX 78205

Chad W. Dunn Counsel of Record
K. Scott Brazil BRAZIL & DUNN, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 chad@brazilanddunn.com
Armand Derfner DERFNER & ALTMAN 575 King Street, Suite B Charleston, SC 29403
Richard Alan Grigg LAW OFFICES OF DICKY GRIGG, P.C. 4407 Bee Caves Road Building 1, Suite 111 Austin, TX 78746

Counsel for Applicants

PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, Dana DeBeauvoir, the Travis County Clerk, and Jacquelyn F. Callanen, the Bexar County Elections Administrator, were defendants in the district court proceedings. They were not, however, parties to the stay proceedings in the court of appeals and are not parties in this Court.
i

RULE 29.6 STATEMENT Applicant Texas Democratic Party does not have a parent corporation, and no publicly held corporation holds ten percent or more of the Texas Democratic Party’s stock.
ii

TABLE OF CONTENTS PARTIES TO THE PROCEEDING..................................................................... i RULE 29.6 STATEMENT................................................................................... ii TABLE OF AUTHORITIES .............................................................................. iv APPLICATION TO VACATE THE FIFTH CIRCUIT’S STAY OF THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS ........................................................... 1 INTRODUCTION AND PROCEEDINGS BELOW........................................... 1 STANDARD OF REVIEW .................................................................................. 4 ARGUMENT ....................................................................................................... 4 I. The Court Is Very Likely to Grant Review of Applicants’ Twenty-
Sixth Amendment Claim ............................................................................. 5 II. The Fifth Circuit’s Construction of the Twenty-Sixth Amendment is
Wrong ......................................................................................................... 10 III. Applicants’ Rights Will Be Seriously and Irreparably Harmed If the
Fifth Circuit’s Stay Is Not Vacated ........................................................... 18 CONCLUSION .................................................................................................. 21
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TABLE OF AUTHORITIES Cases Anderson v. Celebrezze, 460 U.S. 780 (1983) .................................................. 18 Burdick v. Takushi, 504 U.S. 428..................................................................... 18 City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................. 16 Coleman v. Paccar Inc., 424 U.S. 1301 (1976) ................................................... 4 Colorado Project-Common Cause v. Anderson, 495 P.2d 220 (Colo. 1972)....... 7 Coy v. Iowa, 487 U.S. 1012 (1988) .................................................................... 18 Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) ................................................ 19 Gray v. Johnson, 234 F. Supp. 743 (S.D. Miss. 1964)........................................ 6 Harman v. Forssenius, 380 U.S. 528 (1965) .............................................passim Hollingsworth v. Perry, 558 U.S.183 (2010) ................................................ 4, 18 Jolicoeur v. Mihaly, 488 P.2d 1 (Cal. 1971) ................................................ 5-6, 7 Kusper v. Pontikes, 414 U.S. 51 (1973)............................................................ 20 Lane v. Wilson, 307 U.S. 268 (1939) ...................................................... 7, 13, 17 League of Women Voters of United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016) .................................................................................................................. 19 McDonald v. Board of Election Comm’rs, 394 U.S. 802 (1969) ....... 9, 15, 16, 17 Mozilla Corp. v. Fed. Commc’ns Comm’n, 940 F.3d 1 (D.C. Cir. 2019) .......... 19 Nashville Student Org. Comm. v. Hargett, 155 F.Supp.3d 749 (M.D. Tenn. 2015) .................................................................................................................... 5 Nken v. Holder, 556 U.S. 418 (2009) ................................................................ 18 Oregon v. Mitchell, 400 U.S. 112 (1970) .......................................................... 16 Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam) ........................................ 19 Reno v. Bossier Par. Sch. Bd., 528 U.S. 320 (2000) ......................................... 14 State of N.Y. v. Sullivan, 906 F.2d 910 (2d Cir. 1990)..................................... 19 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) ................ 20 Tully v. Okeson, Case No. 1:20-cv-01271-JPH-DLP (S.D. Ind.) (amended complaint filed May 4, 2020) .............................................................................. 9 Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 612 (2017) .................................................................................................... 12 W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301 (1987) ................... 4
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Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975) .................................................................................................................... 8 Walgren v. Howes, 482 F.2d 95 (1st Cir. 1973) ................................................. 7 Williams v. Rhodes, 393 U.S. 23 (1968) ........................................................... 11 Constitutional Provisions U.S. Const., amend. XIV ........................................................................... passim U.S. Const., amend. XV ............................................................................ passim U.S. Const., amend. XIX ................................................................... 6, 10, 14, 17 U.S. Const., amend XXIV ......................................................................... passim U.S. Const., amend. XXVI ........................................................................ passim Statutes Tex. Elec. Code § 82.003 ................................................................................. 2, 8 Uniformed and Overseas Citizens Absentee Voting Act of 1986 as amended,
52 U.S.C. § 20301 et seq................................................................................ 15 Other Authorities 117 Cong. Rec. 7539 (Mar. 23, 1971) (statement of Rep. Claude Pepper) ...... 17 Champagne, Sarah R., Texas Reports Largest Single-Day Increase in
Coronavirus Cases, Tex. Trib., June 11, 2020) .............................................. 3 S. Rep. No. 92-26, 92d Cong., 1st Sess. (1971) ........................................... 11, 16 Tex. Proclamation (Mar. 20, 2020) ..................................................................... 3
v

APPLICATION TO VACATE THE FIFTH CIRCUIT’S STAY OF THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
TO: The Honorable Samuel A. Alito, Circuit Justice for the Fifth Circuit:
Pursuant to Rules 22 and 23 of the Rules of this Court, applicants Brenda Li Garcia, Joseph Daniel Cascino, Shanda Marie Sansing, Gilberto Hinojosa, and the Texas Democratic Party, plaintiffs-appellees in the courts below, respectfully apply for an order vacating the order issued on June 4, 2020, by a panel of the United States Court of Appeals for the Fifth Circuit, a copy of which is appended to this application. The Fifth Circuit’s order stayed a preliminary injunction issued on May 19, 2020, by the United States District Court for the Western District of Texas, Texas Democratic Party v. Abbott, 2020 WL 2541971 (W.D. Tex. May 19, 2020).
INTRODUCTION AND PROCEEDINGS BELOW This application concerns applicants’ right to vote, and whether they and millions of other Texas voters will be able to exercise that fundamental right in the midst of a global pandemic which grows worse by the day in Texas, without risk to their health and—without hyperbole—to their lives. 1. Section 1 of the Twenty-Sixth Amendment provides that “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on
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account of age.” U.S. Const. amend. XXVI § 1. In the courts below, applicants brought a Twenty-Sixth Amendment challenge to a provision of Texas’s Election Code that provides a right to vote by mail without any additional excuse—but only to voters who will be “65 years of age or older on election day.” Tex. Elec. Code § 82.003.
On May 19, 2020, after submission of evidence and briefing and a hearing, the district court determined that applicants were likely to succeed on their as-applied claim that Section 82.003 “violates the clear text of the Twenty-Sixth Amendment.” Texas Democratic Party v. Abbott, 2020 WL 2541971 at *5 (W.D. Tex. May 19, 2020). It found that, in the face of the COVID-19 pandemic, Texas’s restriction of no-excuse vote-by-mail only to voters over the age of 65 forced younger citizens, but not older ones, to expose themselves to a serious threat to their health by voting in person. Id. at *2627. It therefore entered a preliminary injunction on May, 19, 2020, providing that “[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive, and cast an absentee ballot in upcoming elections during the pendency of pandemic circumstances.” Id. at *6.
Given the current state of the pandemic, that preliminary injunction would have applied to at least two elections.
First, the preliminary injunction would have governed the primary runoff election now scheduled for July 14, 2020. That election was originally
2

scheduled for May 26, 2020, but Governor Greg Abbott postponed it through a proclamation that declared that the election “would cause the congregation of large gatherings of people in confined spaces and force numerous election workers to come into close proximity with others, thereby threatening the health and safety of many Texans and literally exposing them to risk of death due to COVID-19.” Tex. Proclamation (Mar. 20, 2020), https://perma.cc/TN2SKUR7. The deadline for applications for vote-by-mail ballots to be received by election officials is July 2.
Second, the preliminary injunction would have governed the general election scheduled for November 3, 2020. COVID-19 infections continue to spread at alarming rates across Texas. See Sarah R. Champagne, Texas Reports Largest Single-Day Increase in Coronavirus Cases, Tex. Trib., June 11, 2020, https://perma.cc/7PY8-ATXB. In light of the continued contagion, that election will almost certainly also occur under “pandemic circumstances.” The deadline for applications for vote-by-mail ballots to be received by election officials for the general election is October 23.
2. Respondents appealed that order and sought an emergency stay “pending appeal.” See App. 5. On June 4, 2020, the Fifth Circuit stayed that injunction “in all its particulars . . . pending further order of the court.” App. 25. The Fifth Circuit took no action to expedite consideration of that appeal. But in a precedential opinion, it held that age-based restrictions on voting practices and procedures are subject to only rationality review, and that
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Texas could rationally restrict absentee voting to citizens over the age of 65 because they are “more likely to face everyday barriers to movement” and getting to the polls than their younger neighbors. App. 17.
There are millions of voters in Texas under the age of sixty-five who would be eligible to obtain a no-excuse vote-by-mail ballot if this application is granted. If the Fifth Circuit’s stay is not vacated, however, many of those voters will be forced to either risk contracting COVID-19 during in-person voting or relinquish their right to vote at all.
STANDARD OF REVIEW “A Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay.” W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers) (quoting Coleman v. Paccar Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers)); see also Hollingsworth v. Perry, 558 U.S.183, 189 (2010).
ARGUMENT The Fifth Circuit’s stay should be vacated because this case meets all three prongs of the test for vacating a stay. First, this is a case which would
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very likely be reviewed here upon final disposition in the Fifth Circuit. Second, the Fifth Circuit is demonstrably wrong in issuing the stay because its decision rests on legal error regarding applicants’ likelihood of success on the merits of their Twenty-Sixth Amendment claim. Third, the rights of applicants will be seriously and irreparably injured by the stay. I. The Court is Very Likely to Grant Review of Applicants’ Twenty-
Sixth Amendment Claim This case could, and in all likelihood will, be reviewed by this Court. Indeed, this is the rare case that should be reviewed even before “final disposition in the court of appeals.” That is why, along with making this Application, applicants have today filed a Petition for Writ of Certiorari Before Judgment, and will move to expedite consideration of the case. “[T]here is no controlling caselaw” from this Court “regarding the proper interpretation of the Twenty-Sixth Amendment or the standard to be used in deciding claims for Twenty-Sixth Amendment violations based on an alleged abridgment or denial of the right to vote.” Nashville Student Org. Comm. v. Hargett, 155 F.Supp.3d 749, 757 (M.D. Tenn. 2015). In the absence of that guidance, there is disarray in the lower courts on an important question of law and the Fifth Circuit’s decision here sharply conflicts with decisions of the Supreme Court of California, the Colorado Supreme Court, and the First Circuit. 1. Shortly after ratification of the Twenty-Sixth Amendment, the California Attorney General issued an opinion that “‘for voting purposes the
5

residence of an unmarried minor’”—in California, a person under the age of 21—“will normally be his parents’ home’ regardless of where the minor’s present or intended future habitation might be.” Jolicoeur v. Mihaly, 488 P.2d 1, 3 (Cal. 1971) (quoting Op. No. 70/213, 54 Adv. Ops. Cal. Atty. Gen. 7, 12 (1971)). As a result of this guidance, registrars told six of the individual plaintiffs in Jolicoeur to register in the California jurisdictions where their parents lived, which were “up to 700 miles away from their claimed permanent residences,” and told other individuals (whose parents lived in other states or abroad) that they could not register in California at all. Id.
The California Supreme Court held that “treat[ing] minor citizens differently from adults for any purpose related to voting” violated the Twenty-Sixth Amendment. Jolicoeur, 488 P.2d at 2. The court pointed to the way the Twenty-Sixth Amendment mirrors the language of the “TwentyFourth, Nineteenth, and Fifteenth before it.” Id. at 4. The court identified Gray v. Johnson, 234 F. Supp. 743 (S.D. Miss. 1964), as a case “significant for its interpretation of similar language in the Twenty-fourth Amendment.” Jolicoeur, 488 P.2d at 4. Gray had held that the “burden” of obtaining a special receipt put on voters who chose not to pay the Mississippi poll tax “circumscribe[d], impair[ed], and impede[d] the right to vote” secured by the Twenty-Fourth Amendment. Id. The California court then explained that so too “[c]ompelling young people who live apart from their parents to travel to their parents’ district to register and vote or else to register and vote as
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absentees burdens their right to vote” as secured by the Twenty-Sixth Amendment. Id. That amendment, like its three predecessors, forbids “onerous procedural requirements which effectively handicap exercise of the franchise . . . although the abstract right to vote may remain unrestricted.” Id. (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939)). Thus, the California Supreme Court held that the Twenty-Sixth Amendment requires state officials “to treat all citizens 18 years of age or older alike for all purposes related to voting.” Id. at 12 (emphasis added). In a case involving age-based restrictions on participation in the initiative process, the Colorado Supreme Court similarly held that “the prohibition against denying the right to vote to anyone eighteen years or older by reason of age applies to the entire process involving the exercise of the ballot and its concomitants.” Colorado ProjectCommon Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972).
In Walgren v. Howes, 482 F.2d 95 (1st Cir. 1973), the First Circuit addressed a college town’s decision to hold municipal elections while the local university was in the midst of its winter break. The court did not consider the “compelling interest test” to be applicable to the students’ Fourteenth Amendment claim. Id. at 99. But when it came to their potential TwentySixth Amendment claim, the First Circuit, like the California Supreme Court, pointed to Lane v. Wilson, which had found that a facially neutral statute was in fact designed to disenfranchise black voters and thus violated the Fifteenth Amendment. See id. at 101. The court suggested that “the
7

voting amendments would seem to have made the specially protected groups, at least for voting-related purposes, akin to a ‘suspect class,’” entitled to heightened judicial scrutiny. Id. at 102.
The First Circuit further explained that if the burden on the right to vote were “of such a significant nature as to constitute an ‘abridgement,’” a court “presumably would not take the additional step of considering the adequacy of governmental justification”; it would simply strike down the challenged practice. Walgren, 482 F.2d at 102. In subsequent proceedings, the First Circuit declared that it was “difficult to believe” that the TwentySixth Amendment “contributes no added protection to that already offered by the Fourteenth Amendment,” with respect to election practices, “particularly if a significant burden were found to have been intentionally imposed solely or with marked disproportion on the exercise of the franchise by the benefactors of that amendment.” Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364, 1367 (1st Cir. 1975).
2. By contrast, in this case, the Fifth Circuit acknowledged that Section 82.003 “facially discriminates on the basis of age.” App. 12. But it then held that when it comes to the manner of voting, the state’s decision to deny younger voters the right to vote by mail that it provided to older voters was subject to mere “rational-basis review.” Id. at 20. Relying on its prior discussion of why distinguishing among voters on the basis of age did not violate the Equal Protection Clause, see id. at 17-19, the Fifth Circuit stated
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that there was “no evidence that Texas has denied or abridged” the right to vote by denying younger voters who wished to avoid COVID-19 the ability to vote by mail; “properly qualified voters may exercise the franchise” by voting in person. Id. at 20. “What ‘is at stake here’” was only “‘a claimed right to receive absentee ballots.’” Id. (quoting McDonald v. Board of Election Comm’rs, 394 U.S. 802, 807 (1969)).
There is no way to reconcile the Fifth Circuit’s precedential decision here with the decisions of the California Supreme Court and the First Circuit.
3. The need for this Court’s guidance is especially pressing today. COVID-19 has impelled many voters who were comfortable with in-person voting to seek an alternative way to cast their ballots this summer and fall. “[D]ue to the pandemic, voters fear going to public polling places. Their concerns are very real, and very well taken.” App. 28. Thus, the Court should anticipate Twenty-Sixth Amendment-based litigation in every state that restricts no-excuse vote-by-mail to an age-based subset of the citizenry. Indeed, such litigation has already begun. See, e.g., Tully v. Okeson, Case No. 1:20-cv-01271-JPH-DLP (S.D. Ind.) (amended complaint filed May 4, 2020) (challenging Ind. Code § 3-11-10-24(a)(5)’s limitation to “elderly” voters over the age of 65). As of now, it is unclear whether discrimination on the basis of age is per se unconstitutional, is presumptively unconstitutional but can be
9

justified if the state satisfies strict scrutiny, or, as the Fifth Circuit held, is subject only to rationality review. Only this Court can resolve that issue. II. The Fifth Circuit’s Construction of the Twenty-Sixth Amendment Is
Wrong. The words of the Twenty-Sixth Amendment are straightforward: “The right of citizens of the United States, who are eighteen 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. That text echoes the Fifteenth, Nineteenth, and Twenty-Fourth Amendments, which direct that the right to vote shall not be “denied or abridged” based on race, sex, or failure to pay a poll tax. A state would plainly violate those amendments if it offered no-excuse mail voting only to whites, only to men, or only to voters who pay a tax. It is equally plain that Texas has violated the Twenty-Sixth Amendment by offering that option only to voters over 65. The Fifth Circuit held otherwise only because it failed to take the amendment’s text seriously. And the court compounded that error by injecting into the Twenty-Sixth Amendment standards of review developed by this Court to adjudicate Fourteenth Amendment challenges to voting restrictions that do not implicate discrimination on a basis expressly forbidden by the four parallel voting amendments. 1. “When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652,
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2680 (2015) (Roberts, C.J., dissenting). The Twenty-Sixth Amendment “embodies the language and formulation of the 19th amendment, which enfranchised women, and that of the 15th amendment, which forbade racial discrimination at the polls.” S. Rep. No. 92-26 at 2, 92d Cong., 1st Sess. (1971). And the Twenty-Fourth Amendment, which “clearly and literally bars any State from imposing a poll tax on the right to vote” in federal elections, contains an equivalent “express constitutional command[] that specifically bar[s] States from passing certain kinds of laws” regarding the right to vote. Williams v. Rhodes, 393 U.S. 23, 29 (1968). Thus, the Twenty-Sixth Amendment must be read in pari materia with these virtually identical constitutional provisions.
While age is not a suspect or quasi-suspect classification under the Fourteenth Amendment, App. 16, the Fifth Circuit failed to recognize that the Constitution now gives a different answer with respect to voting. In that respect, a state can no more discriminate against a citizen over the age of 18 on the basis of “age” than it can discriminate against her on the basis of “race, color, or previous condition of servitude,” on the basis of “sex,” or on the basis of “failure to pay any poll tax or other tax.”
Judge Ho recognized this point in his concurrence, conceding that “it would presumably run afoul of the Constitution to allow only voters of a particular race to vote by mail.” App. 30. “Presumably” is an understatement. Black and Latino citizens in Texas are “less likely to own vehicles and are
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therefore more likely to rely on public transportation” than their Anglo counterparts. Veasey v. Abbott, 830 F.3d 216, 251 (5th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 612 (2017). But can there be any doubt that Texas would violate the Fifteenth Amendment if it decided to accord no-excuse voteby-mail to minority voters but not to white ones as a “way to facilitate exercise of the franchise for Texans who are more likely to face everyday barriers to movement,” App. 17? If granting the right to cast mail-in ballots on the basis of race violates the Fifteenth Amendment—and it does—then it follows inescapably that granting that right on the basis of age violates the Twenty-Sixth.
2. This Court’s construction of the Twenty-Fourth Amendment in Harman v. Forssenius, 380 U.S. 528 (1965), confirms that the Fifth Circuit erred in thinking that under-65 voters’ right to vote is not “abridged” by their exclusion from no-excuse vote-by-mail so long as they have the right to vote in person, App. 20.
In anticipation of the ratification of the Twenty-Fourth Amendment, Virginia enacted a provision, Section 24-17.2, that required a voter who wished to vote in federal elections either to pay the usual poll tax or to “file a certificate of residence in each election year.” Harman, 380 U.S. at 532. This Court held unanimously that that provision was “repugnant to the Twentyfourth Amendment.” Id. at 533. The Court acknowledged that Virginia could abolish its poll tax altogether and then require all voters to file the certificate
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of residence. Id. at 538. But requiring a voter who did not pay the poll tax to file the certificate nevertheless “constitute[d] an abridgment of the right to vote.” Id.
The Court explained that it “need only be shown that Section 24-17.2 imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax.” Harman, 380 U.S. at 541. The Court held that it did because Section 2417.2 imposed “cumbersome” logistical burdens on voters who declined to pay the poll tax that poll tax-paying voters did not face. See id. at 541-42.
The Court also emphasized that Section 24-17.2’s registration requirement “would not be saved even if it could be said that it is no more onerous, or even somewhat less onerous, than the poll tax.” Harman, 380 U.S. at 542. “Any material requirement” based “solely” on declining to pay a poll tax “subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.” Id. (emphasis added), So, too, in Lane v. Wilson, 307 U.S. 268 (1939), this Court emphasized that the Fifteenth Amendment bars “onerous procedural requirements which effectively handicap exercise of the franchise”—in that case, by black voters—“although the abstract right to vote may remain unrestricted as to race.” Id. at 275.
As in Harman and Lane, requiring under-65 voters to show up at the polls in person, particularly during the COVID-19 pandemic, while allowing over-65 voters to cast ballots from the safety of their homes imposes a
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“material requirement” on younger voters that “effectively handicap[s]” the exercise of the franchise. Even the Fifth Circuit did not deny that COVID-19 “increases the risks” citizens would face from in-person voting. App. 14. Nor did it deny that it can be more “cumbersome,” Harman, 380 U.S. at 541, to vote in person; that, after all, was precisely why the state afforded no-excuse mail-in voting to seniors. App. 15. But it wrongly thought that Texas’s system was fine as long as it did not prevent younger voters “from voting by all other means.” Id. at 14.
This belief also comes from the Fifth Circuit’s ignoring the plain language of the Twenty-Sixth Amendment. That amendment, like the Fifteenth, Nineteenth, and Twenty-Fourth, does not prohibit states only from “absolutely prohibit[ing]” qualified citizens from voting, App. 14. It prohibits abridging the right to vote as well. The concept of abridgement “necessarily entails a comparison.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000). By comparison to the right to vote that Texas provides to citizens over the age of 65, the right it provides to younger voters is less robust. And it is less robust “solely,” Harman, 380 U.S. at 542, because of the voters’ age thereby subverting the Twenty-Sixth Amendment. Any differential treatment of voters “on account of age” violates the plain language of the Twenty-Sixth Amendment.
The lesson for Texas’s vote by mail scheme is straightforward. Texas could have decided not to extend no-excuse vote-by-mail to anyone, but it
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cannot grant that privilege based on age. The State cannot “impose[] a
material requirement” on voting—namely, showing up at a polling place—
“solely” on the basis of an eligible voter’s age,” Harman, 380 U.S. at 541.1
3. The Fifth Circuit was flatly wrong to suppose that the “logic” of
McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969), “applies
equally to the Twenty-Sixth Amendment.” App. 19.
For starters, the Fifth Circuit misunderstands the relationship
between the Fourteenth and Twenty-Sixth Amendments. The Twenty-Sixth
Amendment was in fact enacted precisely to deal with age-based
discrimination that did not violate the Fourteenth Amendment. Using its
enforcement power under Section 5 of the Fourteenth Amendment, Congress
had tried in the Voting Rights Act of 1970 to extend the right to vote in all
1 Although Texas could have opted not to offer no-excuse vote-by-mail to those over age 65 in the first place, Judge Ho erred in suggesting that the remedy for a Twenty-Sixth Amendment violation would be to “level down”—that is, to take noexcuses vote by mail away from eligible voters over the age of 65, see App. 30-31.
For one thing, it is not clear that Texas can level down—at least for the upcoming elections in 2020 that are covered by the district court’s order. Voters over the age of 65 are entitled to file an “annual” application for mail-in ballots which provides them with such ballots for every election in a calendar year. See Application for Ballot by Mail, https://perma.cc/9CZD-G52E. Absent legislative action, those voters will automatically receive such ballots, which means that the only way to eliminate the age-based discrimination is to enable voters under 65 to obtain mail-in ballots as well.
Moreover, Texas itself has never actually suggested that it wishes to level down. And for good reason: the political blowback elected officials could expect from a voting bloc that participates at a high rate is a powerful deterrent. And Texas could not, of course, eliminate absentee voting altogether because the Uniformed and Overseas Citizens Absentee Voting Act of 1986 as amended, 52 U.S.C. § 20301 et seq., requires states to provide absentee ballots to certain voters for federal elections.
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elections to all citizens over the age of 18. But in Oregon v. Mitchell, 400 U.S. 112 (1970), this Court held that Section 5 of the Fourteenth Amendment did not empower Congress to change a state’s age limitations on the right to vote in state and municipal elections Id. at 130. Given that Congress’s Section 5 enforcement powers enable it to prohibit at least some state regulation that “is not itself unconstitutional,” City of Boerne v. Flores, 521 U.S. 507, 518, 520 (1997), it follows a fortiori that denying or abridging the right to vote on the basis of age would not necessarily violate the Equal Protection Clause. See also S. Rep. No. 92-26 at 8 (stating that an equal protection clause challenge to state age restrictions on voting would be rejected by this Court). So saying that a particular age-based election restriction does not violate the Fourteenth Amendment cannot determine whether it violates the TwentySixth.
Moreover, McDonald actually undermines the Fifth Circuit’s assumption that age-based restrictions on vote-by-mail are constitutional.
The plaintiffs in McDonald were Cook County residents who were detained pending trial in the Cook County jail. Illinois law made no provision for such “judicially incapacitated” individuals to obtain absentee ballots, even though it authorized the provision of absentee ballots to “medically incapacitated” individuals and individuals incarcerated outside the county. McDonald, 394 U.S. at 806.
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The primary reason this Court presumed the constitutionality of the
Illinois scheme and reviewed it under the deferential rational basis standard
was that “the distinctions made by Illinois’ absentee provisions are not drawn
on the basis of wealth or race”—each of which “demand a more exacting
judicial scrutiny.” McDonald, 394 U.S. at 807. But as petitioners have already
explained, the Twenty-Sixth Amendment borrowed verbatim the Fifteenth
Amendment’s formulation because what Congress sought to accomplish was
“exactly” what its predecessors had sought to accomplish with “in
enfranchising the black slaves with the 15th amendment.” 117 Cong. Rec.
7539 (Mar. 23, 1971) (statement of Rep. Claude Pepper). So the “logic” of
McDonald, App. 17, actually undercuts the Fifth Circuit’s analysis. If
distinctions with respect to absentee voting drawn along racial lines are
presumptively invalid—as McDonald itself dictates—so too are such
distinctions when drawn “on account of age,” as are Texas’s.2
2 The Court also rested its decision on the conclusion that “nothing in the record” suggested that “the Illinois statutory scheme ha[d] an impact on appellants’ ability to exercise the fundamental right to vote.” McDonald, 394 U.S. at 807. The Court emphasized that “the record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.” Id. at 808 n.6. But that rationale does not carry over to petitioners’ case here. First, although the extent of the burden on voting may be relevant in an analysis under the Fourteenth Amendment, Harman and Lane make clear that the Fifteenth, Nineteenth, Twenty-Fourth, and TwentySixth Amendments prohibit any burden based on race, sex, poll-tax payment, or age. Second, and in any event, the district court here reviewed the evidence and found that the combination of COVID-19 and Texas’s limitation on mail-in ballots would have an impact on younger voters’ ability to cast their ballots.
17

Finally, the balancing inquiry that generally governs non-race-based Fourteenth Amendment-based voting challenges cannot govern Twenty-Sixth Amendment challenges. In those cases, courts “weigh ‘the character and magnitude’” of the burden imposed on a voter “against ‘the precise interests put forward by the State as justifications for the burden.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). In short, they engage in balancing where any one of a number of state interests can outweigh the voter’s.
But that form of balancing is impermissible here. The prohibition against age-based differential treatment with respect to voting is “explicitly set forth,” see Coy v. Iowa, 487 U.S. 1012, 1020 (1988), in the Constitution. Thus even “other important interests” must give way “to the irreducible literal meaning” of the constitutional provision. Id. at 1021. The TwentySixth Amendment forbids states from acting on any age-based distinction with respect to voting—full stop. III. Applicants’ Rights Will Be Seriously and Irreparably Harmed If the
Fifth Circuit’s Stay Is Not Vacated. Irreparable harm occurs where it “would be difficult—if not impossible—to reverse the harm,” Hollingsworth v. Perry, 558 U.S. 183, 195 (2010), or where an applicant cannot “be afforded effective relief” even if she eventually prevails on the merits. Nken v. Holder, 556 U.S. 418, 435 (2009). In this case, unless the stay is vacated, the harm to applicants cannot be
18

reversed and they will not be afforded effective relief even if they later prevail on the merits.
1. For those applicants and other Texas voters who vote in person, the Fifth Circuit’s stay denies them the ability to cast a mail-in ballot provided by the district court’s order. The harm to their health, and potentially even their lives, cannot be reversed or later effectively relieved. See Mozilla Corp. v. Fed. Commc’ns Comm’n, 940 F.3d 1, 62 (D.C. Cir. 2019) (finding that the fact that “[p]eople could be injured or die” as a result of challenged government action constituted irreparable harm); State of N.Y. v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990) (holding that “a colorable claim of irreparable harm was presented” where the challenged government policy “potentially subjected claimants to deteriorating health, and possibly even to death”).
2. Eligible voters who avoid those irreparable harms by forgoing the right to vote because of fear of contracting COVID-19 suffer a different irreparable injury. Eligible citizens have a “strong interest in exercising the ‘fundamental political right’ to vote,” and there is no relief, monetary or otherwise, which can compensate them for the harm of not being able to select candidates in the primary process. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam); see also Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016) (“Because there can be no ‘do-over’ or redress of a denial of the right to vote after an election, denial of that right weighs heavily in determining whether plaintiffs would be irreparably harmed absent an injunction.”);
19

League of Women Voters of United States v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016) (finding irreparable harm because with regard to election deadlines, “there can be no do over and no redress”). And, as this Court has repeatedly recognized, the right to vote in a primary election, like the right to vote in the general election, is a fundamental one. See, e.g., Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 229 (1986) (striking down Connecticut’s closed primary statute because it “impermissibly burdens the rights of the Party and its members”); Kusper v. Pontikes, 414 U.S. 51, 57 (1973) (striking down an Illinois statute restricting who could vote in the primary because the “right to associate with the political party of one’s choice is an integral part” of basic constitutional freedoms).
The upcoming primary runoff election will decide who the parties put forth in numerous federal, state, and local contests of great consequence in November. And the November general will elect a Senator who will serve for six years, and a President who will serve for at least four. There are no “doovers” for applicants and other Texas voters who are unable to participate in these two momentous elections, nor can there be any redress, monetary or otherwise, for the loss of that opportunity.
3. The Fifth Circuit panel was demonstrably wrong in its application of accepted standards in deciding to issue the stay. As explained above, in issuing the stay, the panel got the merits question dead wrong. And because of this error, the Fifth Circuit both underweighed the harm to applicants and
20

overweighed the state’s interests in continuing to restrict absentee voter on account of age. The Fifth Circuit acknowledged that “[t]here is no doubt that [COVID-19] poses risks of harm to all Americans, including Texas voters.” App. 24. But it then disregarded that harm because it saw no harm from “temporarily staying the [district court] injunction pending a full appeal,” id., even as it did nothing to ensure that such an appeal would be expedited. And a moment’s thought would reveal that a full appeal cannot possibly be decided in time to enable applicants and the millions of eligible voters like them the ability to cast mail-in ballots for the July primary runoff and quite likely for the November election. Thus, the Fifth Circuit erred twice over in concluding that “the balance of harms weighs in favor of the state officials.” Id.
CONCLUSION For the reasons stated herein, applicants respectfully request that the Court vacate the Fifth Circuit panel’s June 4, 2020, stay and reinstate the District Court’s preliminary injunction for the upcoming 2020 primary and general elections.
21

Dated: June 16, 2020

Respectfully submitted,

By: _______________________ Pamela S. Karlan

Jeffrey L. Fisher Brian H. Fletcher Pamela S. Karlan STANFORD LAW SCHOOL SUPREME
COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
Robert Leslie Meyerhoff TEXAS DEMOCRATIC PARTY 314 E. Highland Mall Blvd., #508 Austin, TX 78752
Martin Golando THE LAW OFFICE OF MARTIN GOLANDO PLLC 405 N. St. Marys Street San Antonio, TX 78205

Chad W. Dunn Counsel of Record
K. Scott Brazil BRAZIL & DUNN, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 chad@brazilanddunn.com
Armand Derfner DERFNER & ALTMAN 575 King Street, Suite B Charleston, SC 29403
Richard Alan Grigg LAW OFFICES OF DICKY GRIGG, P.C. 4407 Bee Caves Road Building 1, Suite 111 Austin, TX 78746

Counsel for Applicants

22

 
 No. 19A1055
IN THE SUPREME COURT OF THE UNITED STATES
Texas Democratic Party; Brenda Li Garcia; Joseph Daniel Cascino; Shanda Marie Sansing; and Gilbert Hinojosa, Chair of the Texas Democratic Party,
Applicants, v. Greg Abbott, Governor of Texas; Ruth Hughs, Texas Secretary of State; and Ken Paxton, Attorney General of Texas,
Respondents.

REPLY TO RESPONDENTS’ OPPOSITION TO THE APPLICATION TO VACATE THE FIFTH CIRCUIT’S STAY

Jeffrey L. Fisher Brian H. Fletcher Pamela S. Karlan STANFORD LAW SCHOOL SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
Robert Leslie Meyerhoff TEXAS DEMOCRATIC PARTY 314 E. Highland Mall Blvd., #508 Austin, TX 78752
Martin Golando LAW OFFICE OF MARTIN GOLANDO,
PLLC 405 N. St. Marys Street San Antonio, TX 78205

Chad W. Dunn Counsel of Record
K. Scott Brazil BRAZIL & DUNN, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 chad@brazilanddunn.com
Armand Derfner DERFNER & ALTMAN 575 King Street, Suite B Charleston, SC 29403
Richard Alan Grigg LAW OFFICES OF DICKY GRIGG, P.C. 4407 Bee Caves Road Building 1, Suite 111 Austin, TX 78746

Counsel for Applicants

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. ii INTRODUCTION ...................................................................................................1 I. The State’s Arguments About the Twenty-Sixth Amendment Are
Meritless .......................................................................................................3 II. The State’s Argument Regarding the Timing of this Application Are
Meritless .......................................................................................................6 CONCLUSION...................................................................................................... 12
i

TABLE OF AUTHORITIES Page(s)
Cases Califano v. Westcott,
443 U.S.76 (1979) .................................................................................................... 5 Guinn v. United States,
238 U.S. 347 (1915) ................................................................................................. 6 McDonald v. Bd. of Election Comm’rs,
394 U.S. 802 (1969) ................................................................................................. 3 OCA-Greater Houston v. Texas,
867 F.3d 604 (5th Cir. 2017) ................................................................................... 5 Purcell v. Gonzalez,
549 U.S. 1 (2006) (per curiam) .................................................................... 4, 11, 12 Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205 (2020) ............................................................................................. 2 Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) ............................................................................................. 5 In re State,
2020 WL 2759629 (Tex. May 27, 2020) .................................................................. 8 Texas Democratic Party v. DeBeauvoir,
No. D-1-GN-20-001610 (Travis Cty. Dist. Ct. Mar. 20, 2020) ............................... 7 Ex parte Young,
209 U.S. 123 (1908) ................................................................................................. 4
Constitutional Provisions
U.S. Const., amend. XV ............................................................................................. 3, 6 U.S. Const., amend. XIX................................................................................................ 3 U.S. Const., amend. XXIV ............................................................................................. 3 U.S. Const., amend. XXVI ....................................................................................passim
Statutes
Tex. Elec. Code § 31.001(a)............................................................................................ 5 Tex. Elec. Code § 31.003 ................................................................................................ 5 Tex. Elec. Code § 82.002 ............................................................................................ 7, 8 Tex. Elec. Code § 82.003 .......................................................................................passim
Other Authorities
U.S. Census Bureau, Citizen-Voting Age Population: Texas (Nov. 15, 2016), https://perma.cc/AR2B-ERHB...................................................................... 6
ii

INTRODUCTION Respondents (hereafter collectively “the State”) acknowledge that Texas is scrambling in the face of COVID-19 to figure out how to enable citizens to cast their ballots safely in the upcoming primary and general elections, and that it has not succeeded as of now in doing so. Resp. Opp. 4-6. And the State does not seriously contest that voting by mail would provide such a mechanism. Indeed, Texas unconditionally allows some voters to do so already, but it restricts this form of voting to citizens who are over the age of sixty-five on election day. See Tex. Elec. Code § 82.003. Senior citizens in Texas do not face the burden of going to a polling place in person and risking their health or the health of their loved ones in order to exercise their right to vote. Younger citizens do. Indeed, the State went out of its way to obtain a ruling from the state supreme court compelling precisely that result. In Texas, a citizen’s age, standing alone, determines whether he or she has an unconditional right to vote by mail. This differentiation among voters violates the plain text of Twenty-Sixth Amendment, which provides in pertinent part that “[t]he right of citizens of the United States, who are eighteen 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 (emphasis added). The district court, recognizing this constitutional flaw in Texas’s vote-by-mail regime, issued a preliminary injunction requiring that, during the pendency of the COVID-19 pandemic, the state extend vote-by-mail to all citizens, regardless of age. The court of appeals, however, stayed that injunction on the unsupportable theory that as long as Texas does not
1

take away a voter’s “only shot at exercising the franchise,” Application App. 15, the State’s decision to treat voters differently on account of age somehow does not “implicate” the Twenty-Sixth Amendment, id. 20.
The application explains in detail why it is likely that this case could and very likely will be reviewed here upon final disposition in the court of appeals, why the court of appeals was demonstrably wrong in deciding to issue the stay, and why applicants are likely to be seriously and irreparably injured by the stay.
The flurry of arguments in the State’s opposition ultimately boils down to two propositions. First, the State asserts that because “[t]here is no constitutional right to vote by mail,” Resp. Opp. 2, the Twenty-Sixth Amendment has nothing to say about Section 82.003’s age-based restriction of mail-in ballots. Second, the State argues that this Court should not reinstate the district court’s preliminary injunction because it somehow came both too soon and too late: too soon, because applicants and the district court should have waited during the pendency of state-court litigation involving a different provision of Texas law, and too late, because the district court granted its injunction on “the eve of an election,” Resp. Opp. 1 (quoting Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020))—if by “eve,” one means two months before one of the elections it affects and nearly six months before the other.
Both of those propositions are meritless.
2

I. The State’s Arguments About the Twenty-Sixth Amendment Are Meritless. 1. The linchpin of the State’s merits-related arguments is its mistaken
assumption (shared by the Fifth Circuit) that “the right to vote is not at issue” in this case because there is no constitutional right to “‘receive [and cast] absentee ballots,’” Resp. Opp. 16-17 (quoting McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969) (bracketed material supplied by respondents).
The State misperceives the nature of the constitutional claim. Applicants have never asserted an abstract constitutional right to vote absentee. Applicants freely acknowledge that if Texas had required all voters to vote in person at the polls, the federal Constitution would be silent.
Rather, applicants claim only that once Texas sets up its election system, the Twenty-Sixth Amendment forbids the state from treating voters differently “on account of age” in a way that favors some voters over others. Indeed, the State seems to recognize this when it observes that “[p]etitioners do not claim a constitutional right to a mail-in ballot, only equality based on age.” Resp. Opp. 23.
Having created an unconditional right for some voters to vote by mail in Chapter 82 of its Election Code, Texas cannot restrict that right on bases forbidden by the Constitution. As the application explains, the Twenty-Sixth Amendment mirrors the Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Application 1016. There can be no doubt whatsoever that if a state that limited voting by mail to white voters, or to women, or to taxpayers, it would violate those amendments, regardless of whether black voters, or male voters, or voters who pay no taxes
3

remained free to vote in person. The same rule obtains when it comes to the TwentySixth Amendment. Texas can no more limit vote-by-mail to voters over the age of sixty-five than it could limit its early voting period only to voters under the age of sixty-five (perhaps on the theory that older voters are less likely to face childcare or employment responsibilities that make it difficult to get to the polls on a Tuesday). Whatever right to vote a state creates—whether it involves polling hours, early voting, or vote-by-mail—must be extended to all voters without regard to their race, their sex, their payment of a tax . . . . or their age.
2. Once the Twenty-Sixth Amendment claim is properly understood, the State’s argument that applicants “have not shown irreparable harm because no state action impacts their right to vote,” Resp. Opp. 2, see also id. at 26, evaporates. Applicants’ right to vote has been abridged relative to the right given to voters over the age of sixty-five. It is abridged in that younger voters, but not older ones, are required to choose either (1) to risk serious illness by voting in person at sites the State is still trying to “adapt,” id. at 6, to the realities of COVID-19, or (2) to forgo voting in critical elections. If fear of COVID-19 “drives honest citizens out of the democratic process,” this will undermine “our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). The recent debacles in states across the country show that Texas’s decision to restrict no-excuse voting by mail to older voters will have a strong, negative impact on voters under the age of sixty-five.1
1 The Fifth Circuit correctly rejected the State’s arguments (which it tries to renew here) that none of the respondents are amenable to suit under Ex parte Young, 209 U.S. 123 (1908). See Application App. 11. The State offers no response to the Fifth
4

3. In a last-ditch effort to prevent applicants from voting by mail in the
upcoming elections, the State argues that even if this Court were to hold that the
Twenty-Sixth Amendment means what it says, “the district court ordered the wrong
remedy.” Resp. Opp. 23. The State suggests that the district court should have taken
the right to vote by mail away from voters over the age of sixty-five, rather than
extending it to voters under the age of sixty-five. While it is true that a state could cure a Twenty-Sixth Amendment violation
by leveling down, this Court recently “reiterated” that when courts impose a remedy,
“‘extension, rather than nullification’” is “[o]rdinarily,” the “‘proper course’” for a court to take. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1699 (2017) (quoting Califano v. Westcott, 443 U.S.76, 89 (1979)).
Here, there are several reasons why the district court was correct to require
leveling up, at least with respect to its preliminary injunction.
For Texas to cure the Twenty-Sixth Amendment violation by leveling down,
the State would have to strip the ability to cast an absentee ballot from millions of
voters. One in six Texas citizens of voting age (more than three million citizens all
Circuit’s reliance on OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017), which had held that “[t]he facial invalidity of a Texas election statute is, without question, fairly traceable to and redressable by the State itself and its Secretary of State, who serves as the ‘chief election officer of the state.’” Id. at 613; see also Tex. Elec. Code §§ 31.001(a), 31.003.
Moreover, while it is true that “the impact of COVID-19 on in-person voting,” Resp. Opp. 13, stems from the nature of the virus, the injury applicants face is “traceable to respondents’ actions,” id., in refusing to provide mail-in ballots to voters under the age of sixty-five, and would be redressed by an injunction striking the agebased limitation in Section 82.003.
5

told) is over the age of sixty-five. U.S. Census Bureau, Citizen-Voting Age Population: Texas (Nov. 15, 2016), https://perma.cc/AR2B-ERHB. It is entirely unclear that a majority of the state legislature would choose to take the right away from a bloc of voters that participate at a higher rate than their younger counterparts. And it seems quite doubtful that the legislature would do so during the pendency of a pandemic that is especially threatening to older individuals.
Moreover, given the importance of the right to vote, it would be improper for a federal court to deprive a large group of citizens of a right they have enjoyed for decades, and on which they may be especially reliant in this election cycle. This Court’s foundational decision in Guinn v. United States, 238 U.S. 347 (1915), construing the Fifteenth Amendment suggested that the appropriate “consequence of the striking down of a discrimination clause” is that “a right of suffrage would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out.” Id. at 363. Striking the words “if the voter is 65 years of age or older on election day” from Section 82.003 would produce a leveling up and create, at least unless and until the Texas legislature provides otherwise, a right to vote by mail for any “eligible voter.” II. The State’s Argument Regarding the Timing of this Application Are
Meritless. The State’s arguments that applicants were both too hasty and too dilatory in seeking the preliminary relief they obtained in the district court and the intervention they seek from this Court are both self-contradictory and wrong.
6

1. Applicants were not too hasty in seeking relief in federal court. In making this argument, the State misstates the nature and the significance of the parallel state court litigation. That litigation has no bearing on the Twenty-Sixth Amendment claim at the core of this application. And contrary to the State’s insinuations, the fact that some of the applicants here sought relief first in state court strengthens their argument for relief from this Court.2
The state-court litigation brought by and on behalf of voters, Texas Democratic Party v. DeBeauvoir, No. D-1-GN-20-001610 (Travis Cty. Dist. Ct. Mar. 20, 2020), did not concern Section 82.003 at all. Nor did it raise any federal claims, let alone claims under the Twenty-Sixth Amendment. Instead, it concerned only the proper interpretation of Tex. Elec. Code § 82.002, which permits an eligible voter to cast a mail-in ballot “if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . . . injuring the voter’s health.” The plaintiffs in the state-court litigation argued that a lack of immunity to COVID-19 was such a condition. Of course, they could not have brought that claim prior to the outbreak of COVID-19 in early spring.
Had the state-court litigation ultimately succeeded, there would have been no need for a preliminary injunction from a federal court on any of applicants’ federallaw claims: the state-court decision would have enabled citizens to vote by mail using Section 82.002 during the pendency of the pandemic. In light of current conditions in
2 Some of the challengers in the state-court proceedings are not plaintiffs in this case and, conversely, applicant Brenda Li Garcia was not a party to the statecourt proceedings.
7

Texas, where COVID-19 cases are still rising, the practical effect would have been that most Texas voters would have been entitled, as a matter of state law, to cast mail-in ballots throughout the 2020 election cycle. Applicants could then have litigated their Twenty-Sixth Amendment claims (as well as their other federal claims) on a conventional schedule in federal court without the need for preliminary relief.
But the State vigorously, and ultimately successfully, resisted the claim that voters could use Section 82.002 to vote by mail during the pandemic. Indeed, the State went so far as to file a mandamus action to prohibit local election officials from advising voters that “fear of COVID-19” could justify using Section 82.002 to request an absentee ballot and to warn that “any ‘third parties’ who advised voters to apply for mail-in ballots due to a fear of COVID-19 could be prosecuted.” See In re State, 2020 WL 2759629, at *6 (Tex. May 27, 2020). Once the Texas Supreme Court definitively held that “a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” id. at *2, voters no longer had any basis for seeking relief from the state courts on their state-law claims.
Applicants filed their federal case in April 2020 in the face of continued uncertainty over how the state courts would ultimately construe Section 82.002. There is literally no respect in which their Twenty-Sixth Amendment claim regarding Section 82.003’s discrimination on the basis of age is “duplicative,” Resp. Opp. 7, of the state-law claims regarding Section 82.003. Nor is the relief they sought for their Twenty-Sixth Amendment claims “indistinguishable,” id. at 8, from the relief sought in the state-court suit, since the Twenty-Sixth Amendment challenge is not
8

dependent on the COVID-19 pandemic in any way and would be meritorious even if COVID-19 had never existed.
With respect to the Twenty-Sixth Amendment claims, there was no reason for either applicants or the federal district court to wait for the state courts’ decision. Nothing the state courts might do with respect to construing the disability provision could have any bearing on the constitutionality of Section 82.003’s age restriction. And given the first paragraph of the State’s opposition in this Court, had applicants waited to file their Twenty-Sixth Amendment claim until after the state supreme court finally ruled on May 27, this Court can be sure that the State would have doubled down on its argument that applicants waited too long to seek any relief for the upcoming elections.3
In short, applicants’ federal complaint and request for preliminary injunctive relief and the district court’s grant of such relief were timely, not premature.
2. Applicants were not “dilatory,” Resp. Opp. 26, either before the Fifth Circuit or in this Court. The Fifth Circuit proceedings consumed two weeks from the time the State filed its motion for a stay pending appeal on May 20 to the panel’s opinion explaining the decision to grant that stay issued on June 4. The State is simply wrong
3 Respondents’ laches argument cannot be taken seriously. The antiquity of the statute would of course provide no defense whatsoever to applicants’ obtaining permanent declaratory and injunctive relief. Because they sought preliminary relief only on their as-applied claim, which turns on the discriminatory burden Section 82.003 imposes in light of the COVID-19 pandemic, that claim could not have been brought earlier. And in any event, applicant Cascino is twenty years old, and he would have lacked standing until he turned eighteen regardless of when Texas enacted Section 82.003.
9

to claim that “[t]he Fifth Circuit stayed the district court’s injunction on May 20.” Id. It did no such thing. The May 20 order was a “temporary administrative stay,” App. App. 5, simply to enable the court of appeals to “consider[]the motion for stay pending appeal,” Order of May 20, 2020, BL-10. Applicants had no basis for opposing that standard practice. Until the Fifth Circuit decided the State’s motion and applicants saw its reasoning—events that did not occur until June 4—applicants could not have known whether they had a strong argument for this Court’s intervention.
Within twelve days of the court of appeals’ June 4 decision—which revealed that the Fifth Circuit simply misunderstood the Twenty-Sixth Amendment claim and that this misunderstanding tainted its decision to stay the district court’s injunction—applicants filed both this application and a petition for writ of certiorari before judgment with this Court. No. 19-1389. That is not “nearly a month” later as the State disingenuously suggests, Resp. Opp. 1, and it is hardly dilatory.
Nor was there any point in seeking further relief from the Fifth Circuit once it issued the June 4 opinion. Even an expedited briefing schedule with a decision soon thereafter would not have protected applicants’ interests in the upcoming election: If applicants ultimately prevailed, the State surely would have come to this Court arguing that it was too late to award any relief for the upcoming elections, since the State is arguing it is already too late now. And it was unlikely applicants could prevail in any further proceedings before the Fifth Circuit, given that the June 4 opinion is precedential.
10

3. Applicants recognize that we are fast approaching the point at which vacating the stay and reinstating the preliminary injunction with respect to the July primary runoff could raise concerns under this Court’s Purcell doctrine. But there can be no argument from Purcell with respect to the November 3 general election, which is also covered by the preliminary injunction because it too will occur “during the pendency of pandemic circumstances,” Pet. App. 71a. That election was close to six months away when the district court entered its injunction and is still nearly five months away today. To the best of counsel’s knowledge, this Court has never applied Purcell to overturn relief for an election that is still months away.
Tellingly, the State makes no argument that its current election practices are fixed; indeed, it touts all the ways it is changing its system to respond to the COVID19 emergency. Resp. Opp. 4-6. And it is worth noting that for a month this spring— between the state trial court’s issuance of an injunction on April 17 allowing voters without COVID-19 immunity to vote by mail and the state supreme court’s decision to stay that injunction on May 15—five of Texas’s most populous counties were publicly informing citizens that they could vote by mail and urging them to do so, leading many individuals to apply for mail-in ballots. In this already fluid situation, Purcell does not require that federal courts refuse all relief for a clear constitutional violation.
Nor has the State offered any argument that it would face logistical difficulties in complying with the district court’s preliminary injunction. Indeed, the experience between April 17 and May 15 shows that local officials are eminently capable of
11

complying with the district court’s preliminary injunction. The State’s most populous

county filed an amicus brief in the Fifth Circuit stating exactly that. See Br. of Harris

County in Support of Opposition To Defendants-Appellants’ Emergency Motion For

Stay Pending Appeal 3-4, 8-12, 20-21, BL-30. The only injury the State asserts is the

boilerplate claim that any time a state cannot enforce its laws, it suffers an injury.

Resp. Opp. 24. But when a state’s law so clearly flouts a constitutional prohibition,

that asserted injury rings hollow.

CONCLUSION

This Court should vacate the Fifth Circuit’s panel June 4, 2020, stay and

reinstate the District Court’s preliminary injunction for the upcoming 2020 primary

and general elections.

Dated: June 23, 2020

Respectfully submitted,

By: _______________________ Pamela S. Karlan

Jeffrey L. Fisher Brian H. Fletcher Pamela S. Karlan STANFORD LAW SCHOOL ] SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
Robert Leslie Meyerhoff TEXAS DEMOCRATIC PARTY 314 E. Highland Mall Blvd., #508 Austin, TX 78752

Chad W. Dunn Counsel of Record
K. Scott Brazil BRAZIL & DUNN, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 chad@brazilanddunn.com
Armand Derfner DERFNER & ALTMAN 575 King Street, Suite B Charleston, SC 29403

12

Martin Golando LAW OFFICE OF MARTIN GOLANDO
PLLC 405 N. St. Marys Street San Antonio, TX 78205

Richard Alan Grigg LAW OFFICES OF DICKY GRIGG, P.C. 4407 Bee Caves Road Building 1, Suite 111 Austin, TX 78746

Counsel for Applicants

13

 
 No. 19A1055
In the Supreme Court of the United States
TEXAS DEMOCRATIC PARTY; AND GILBERT HINOJOSA, CHAIR OF THE TEXAS DEMOCRATIC PARTY; JOSEPH DANIEL CASCINO;
SHANDA MARIE SANSING; BRENDA LI GARCIA, Applicants,
v. GREG ABBOTT, GOVERNOR OF TEXAS; RUTH HUGHS, TEXAS SECRETARY OF
STATE; AND KEN PAXTON, ATTORNEY GENERAL OF TEXAS, Respondents.
On Application to Vacate the Stay of the United States Court of Appeals for the Fifth Circuit
RESPONDENTS’ OPPOSITION TO APPLICATION TO VACATE FIFTH CIRCUIT STAY OF PRELIMINARY INJUNCTION

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant
Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 Kyle.Hawkins@oag.texas.gov

KYLE D. HAWKINS Solicitor General
Counsel of Record LANORA C. PETTIT Assistant Solicitor General
Counsel for Respondents

TABLE OF CONTENTS Page
Table of Authorities...................................................................................................................... ii Introduction ................................................................................................................................1 Statement of the Case .............................................................................................................3
A. Voting By Mail in Texas........................................................................................3 B. State Officials Work Tirelessly to Make In-Person Voting Safe......................4 C. Petitioners Pursue Unsuccessful Claims in State Court...................................6 D. Petitioners Bring This Duplicative Litigation in Federal Court......................7 Argument .....................................................................................................................................9 I. This Court is Not Likely to Review the Interlocutory Decision Below...................9 II. The Fifth Circuit’s Interlocutory Decision Applies the Correct Standard and Correctly Stayed the Preliminary Injunction ..................................16 A. Respondents are likely to succeed on all of Petitioners’ claims......................16
1. The Twenty-Sixth Amendment Does Not Confer on Petitioners the Right to Vote by Mail............................................................................16
2. Respondents are likely to show that the district court’s remedy was improper ................................................................................................23
B. Respondents will suffer irreparable injury if the stay is lifted.......................24 C. The other stay factors favor respondents .........................................................24 III. The Applicants Face No Threat of Serious or Irreparable Injury from the Stay Pending Appeal.............................................................................................25 Conclusion .................................................................................................................................29 Certificate of Service ............................................................................................................30
i

TABLE OF AUTHORITIES
Page(s) Cases: Abbott v. Perez,
138 S. Ct. 2305 (2018)...............................................................................................................4 Abbott v. Veasey,
137 S. Ct. 612 (2017).........................................................................................................10, 11 Am. Const. Co. v. Jacksonville T & K.W. Ry. Co.,
148 U.S. 372 (1895).................................................................................................................10 Anderson v. Celebrezze,
460 U.S. 790 (1983)...........................................................................................................21, 22 Ashcroft v. Iqbal,
556 U.S. 662 (2009).................................................................................................................11 Atwater v. Lago Vista,
532 U.S. 318 (2001)........................................................................................................... 20-21 Baker v. Carr,
369 U.S. 186 (1969).................................................................................................................22 Bhd. of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R. Co.,
389 U.S. 327 (1967) (per curiam) ..........................................................................................10 Block v. North Dakota ex rel. Board of Univ. and School Lands,
461 U.S. 273 (1983).................................................................................................................14 Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019).............................................................................................................20 Brushaber v. Union Pac. R.R. Co.,
240 U.S. 1 (1916).....................................................................................................................19 Bullock v. Calvert,
480 S.W.2d 367 (Tex. 1972) ...................................................................................................12 Burdick v. Takushi,
504 U.S. 428 (1992).......................................................................................................3, 21, 22 California v. Texas,
No. 19-840 (U.S. Jan. 21, 2020) .............................................................................................27 Certain Named and Unnamed Non-Citizen Children v. Texas,
448 U.S. 1327 (1980).................................................................................................................9 Coleman v. Paccar, Inc.,
424 U.S. 1301 (1976)...........................................................................................................9, 25 Colorado Project-Common Cause v. Anderson,
495 P.2d 220 (Colo. 1972).......................................................................................................15 Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008).............................................................................................................5, 22
ii

Eisner v. Macomber, 252 U.S. 189 (1920).................................................................................................................18
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) ...................................................................................................14
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................................10
Ex parte Young 209 U.S. 123 (1908).................................................................................................................12
Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989).................................................................................................................11
Flagg Bros. v. Brooks, 436 U.S. 149 (1978).................................................................................................................13
Frank v. Walker, 574 U.S. 929 (2014)...................................................................................................................1
Goosby v. Osser, 409 U.S. 512 (1973).................................................................................................................17
In re State of Texas, No. 20-0394, 2020 WL 2759629 (Tex. May 27, 2020) (original proceeding) ............ passim
Jacobson v. Massachusetts, 197 U.S. 11 (1905).....................................................................................................................4
Jolicoeur v. Mihaly, 488 P.2d 1 (Cal. 1971) ............................................................................................................15
Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969).................................................................................................................18
Lee v. Va. State Bd. of Elec., 843 F.3d 592 (4th Cir. 2016) ..................................................................................................21
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).................................................................................................................13
Maryland v. King, 133 S. Ct. 1 (2012) ..................................................................................................................24
Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996).................................................................................................................14
McDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969)...............................................................................................17, 18, 19, 20
Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991).................................................................................................................24
Moreland v. Fed. Bureau of Prisons, 547 U.S. 1106 (2006)...............................................................................................................10
Mount Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944 (2012).................................................................................................................10
Nashville Student Organizing Committee v. Hargett, 155 F. Supp. 3d 749 (M.D. Tenn. 2015)................................................................................19
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Nken v. Holder, 556 U.S. 418 (2009).....................................................................................................16, 24, 25
O’Brien v. Skinner, 414 U.S. 524 (1974).................................................................................................................17
Olson v. DEA, 878 F.2d 1458 (D.C. Cir. 1989)..............................................................................................23
Pennhurst State Sch. v. Halderman, 465 U.S. 89 (1984)...................................................................................................................12
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506 (2013).................................................................................................................9
Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam) ....................................................................................1, 11, 24
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).................................................................................................................13
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020).........................................................................................................1, 11
Rucho v. Common Cause, 139 S. Ct. 2484 (2019).............................................................................................................22
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)...................................................................................................................12
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017).............................................................................................................23
S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020)...............................................................................................................4
Storer v. Brown, 415 U.S. 724 (1974).................................................................................................................24
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014).................................................................................................................13
Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020) (per curiam) .....................................................................13, 26
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).................................................................................................................21
Town of Chester v. Laroe Estates, 137 S. Ct. 1645 (2017).............................................................................................................13
Town of Greece v. Galloway, 572 U.S. 565 (2014)...........................................................................................................18, 20
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam) ......................................................................................27
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011).................................................................................................................12
Valentine v. Collier, No. 20-20207, 2020 WL 3026716 (5th Cir. June 5, 2020)......................................................3
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Veasey v. Perry, 135 S. Ct. 9 (2014) ....................................................................................................................1
Veasey v. Perry, 136 S. Ct. 1823 (2016).............................................................................................................11
Vieth v. Jubelirer, 541 U.S. 267 (2004).................................................................................................................22
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).................................................................................................................11
Walgren v. Board of Selectmen of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975) ................................................................................................15
Washington v. Glucksberg, 521 U.S. 702 (1997).................................................................................................................20
Will v. Hallock, 546 U.S. 345 (2006).................................................................................................................10
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................25
Wrotten v. New York, 560 U.S. 959 (2010).................................................................................................................10
Constitutional Provisions and Statutes: U.S. CONST.
amend. I ....................................................................................................................................7 amend. XIV...............................................................................................................................7 amend. XXVI.................................................................................................................passim Ind. Code § 3-11-10-24(a)(5)........................................................................................................20 Ky. Rev. Stat § 117.085(1)(a)(8)..................................................................................................20 La. Stat. § 18:1303(J) ...................................................................................................................20 Tex. Elec. Code ch. 64..........................................................................................................................................3 §§ 82.001-.004 ............................................................................................................................ 4 § 82.002(a) ...........................................................................................................................7, 20 § 82.003..............................................................................................................................16, 20 § 82.005 ......................................................................................................................................3 § 83.005....................................................................................................................................13 § 84.0041..................................................................................................................................12 § 85.001......................................................................................................................................3 § 86.001(a) ...............................................................................................................................13 § 86.004(a) ...............................................................................................................................23 § 87.0241..................................................................................................................................23 § 273.021(a) .............................................................................................................................12 § 276.013..................................................................................................................................12 Act of May 30, 1975, 64th Leg. R.S., ch. 682, § 5, 1975 Tex. Gen. Laws 2080..........................3 Tex. S. Con. Res. 65, 62nd Leg., R.S., 1971 Tex. Gen. Laws 3867............................................4
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Misecellaneous: ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS (2012).........................................................................................................19 Br. of States of Indiana, et al. as Amici Curiae,
Abbott v. Veasey, 137 S. Ct. 612 (2017) (No. 16-393) ..........................................................10 Chad W. Dunn, et al., Legal Theories to Compel Vote-by-Mail in Federal Court,
11 CAL. L. REV. ONLINE 166 (2020) ............................................................................... 14-15 Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power,
121 YALE L.J. 1168 (2012).....................................................................................................19 H.J. of Tex., 64th Leg., R.S. 4204 (1975) .....................................................................................4 House Committee on Elections, Bill Analysis, Tex. S.B. 1047,
64th Leg., R.S., (1975), https://lrl.texas.gov/LASDOCS/64R/SB1047/ SB1047_64R.pdf#page=82 ....................................................................................................4 Michael King, Paxton Threatens Election Officials with Prosecution, AUSTIN CHRON. (May 4, 2020), https://www.austinchronicle.com/daily/news/ 2020-05-04/paxton-threatens-election-officials-with-prosecution/ ................................. 6-7 Michael T. Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 EMORY L.J. 545 (2018) ......................................21, 22 National Conference of State Legislatures, Voting Outside the Polling Place: Absentee, All-Mail, and Other Voting at Home Options, Qualifying for an Absentee Ballot (June 9, 2020), https://www.ncsl.org/research/elections-andcampaigns/absentee-and-early-voting.aspx ........................................................................ 20 S.J. of Tex. 64th Leg., R.S. 1932 (1975) .......................................................................................4 S. Rep. No. 91-26 14 (1971) .........................................................................................................19 STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE (10th ed. 2013) ........................10 Tessa Weinberg, Paxton Warns Local Officials Against Encouraging Vote-by-Mail Due to Coronavirus Fears, FORT WORTH STAR-TELEGRAM (May 1, 2020) .....................................................................7 Tex. Gov. Proclamation (Mar. 18, 2020, 10:00 a.m.) ...................................................................5 Texas Health and Human Services, Long Term Care, https://hhs.texas.gov/services/aging/long-term-care .........................................................20 Texas Secretary of State, Election advisories, https://www.sos.texas.gov/elections/laws/election-division-advisories.shtml ...................5 Texas Secretary of State, Election Advisory No. 2020-19, Voting In Person During COVID-19 (June 18, 2020), https://www.sos.texas.gov/elections/laws/advisory2020-19.shtml ..................................5, 6 Texas Secretary of State, Health Protocols for Voters, https://www.sos.texas.gov/elections/forms/health-protocols-for-voters.pdf .....................5
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INTRODUCTION This 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., 140 S. Ct. 1205, 1207 (2020) (citing Frank v. Walker, 574 U.S. 929 (2014); Veasey v. Perry, 135 S. Ct. 9 (2014); Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)). “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell, 549 U.S. at 4. And “[c]ourt orders affecting elections” can “result in voter confusion and consequent incentive to remain away from the polls.” Id. at 4-5. The Fifth Circuit faithfully applied that instruction to stay a sweeping district court order that would rewrite a provision of the Texas Election Code that has been in effect since 1975. Pet. App. 7a-8a. The Fifth Circuit correctly explained that petitioners’ ineligibility to vote by mail does not implicate “the right to vote” protected by the Twenty-Sixth Amendment—or any other constitutional provision. There is no constitutional right to vote by mail, and each petitioner acknowledges that he or she has the option to vote by personal appearance on election day or during the extended early-voting period Texas is offering before the July primary. Now, having waited nearly a month since the injunction was initially stayed, petitioners claim crisis and ask this Court to grant them the extraordinary relief of vacating the Fifth Circuit’s unanimous stay and issuing a writ of certiorari before judgment precisely because there are just a few weeks before a statewide primary election. The Court should deny that request for multiple reasons.

First, this Court is not likely to grant review, particularly ahead of judgment. The case’s interlocutory posture makes the petition unripe for review in this Court. Moreover, due largely to petitioners’ own litigation strategy, it suffers from numerous jurisdictional defects and other impediments that would prevent this Court from reaching the merits. In any event, there is no conflicting authority, and petitioners’ claims to the contrary misread the decisions they cite.
Second, even if petitioners could overcome numerous jurisdictional and procedural obstacles, the preliminary injunction fails on the merits. There is no constitutional right to vote by mail. So long as a State has permitted voting through other means, which Texas has, the right to vote is not implicated. And in any event, the district court clearly erred in its remedy. This Court has held squarely that when an exception to a general rule is unconstitutional, courts are to eliminate the exception, not grant it to everyone and supersede the general rule. The general rule in Texas is that everyone must vote by personal appearance. In overriding that legislative choice, the district court flouted this Court’s pronouncements.
Third, petitioners have not shown irreparable harm because no state action impacts their right to vote. They admit, as they must, that they may vote by personal appearance on election day or during early voting. The only state action implicated is the Texas Legislature’s enactment of an exception to the usual in-person voting rule for voters over the age of sixty-five, and that occurred nearly half a century ago. Moreover, if petitioners really faced ongoing irreparable harm, they would not have waited four weeks to seek relief, and they would have asked the Fifth Circuit for
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expedited consideration before burdening this Court. Indeed, the Fifth Circuit recently demonstrated that it can resolve an expedited appeal 44 days after staying a preliminary injunction. Valentine v. Collier, No. 20-20207, 2020 WL 3026716 (5th Cir. June 5, 2020) (ruling on merits; stay entered April 22). The Fifth Circuit did not do the same here because petitioners did not ask it to.
This Court has long recognized that “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). The record reflects that respondents have acted diligently, guided by federal recommendations, to ensure that in-person voting remains safe. The Court should allow them to continue to do so. The application should be denied.
STATEMENT OF THE CASE A. Voting By Mail in Texas Texas law has long required most voters to cast their ballots in person, either on election day, Tex. Elec. Code ch. 64, or during an early-voting period prescribed by the Legislature, id. §§ 82.005, 85.001. It has, however, recognized that certain voters face unique hardships in going to the polls. In 1975, the Legislature “extended absentee voting to voters 65 years of age or older.” In re State of Texas, No. 20-0394, 2020 WL 2759629, at *8 (Tex. May 27, 2020) (Texas) (original proceeding) (citing Act of May 30, 1975, 64th Leg. R.S., ch. 682, § 5, 1975 Tex. Gen. Laws 2080, 2082). This bill was a significant revision of the Election Code designed, in part, “to bring the
3

Texas Election Code into conformity with” with the Twenty-Sixth Amendment.1 The bill, which both lowered the voting age to 18 and allowed voters over 65 to vote by mail, was adopted by overwhelming majorities in both houses of the Texas Legislature. H.J. of Tex., 64th Leg., R.S. 4204 (1975); S.J. of Tex. 64th Leg., R.S. 1932 (1975).
Texas currently allows voters to vote by mail if they (1) anticipate being absent from their county of residence; (2) “ha[ve] a sickness or physical condition that prevents the voter from appearing at the polling place;” (3) are 65 or older; or (4) are confined to jail. Tex. Elec. Code §§ 82.001-.004.
B. State Officials Work Tirelessly to Make In-Person Voting Safe. “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). It likewise places primary responsibility on state officials to conduct elections—a duty courts presume is discharged in good faith. See Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). To those ends, Texas officials have worked diligently to ensure both the safety and integrity of elections. On March 13, 2020, Governor Abbott declared a state of disaster in all of Texas’s 254 counties. ROA.990-92.2 He thereafter postponed certain elections and allowed political subdivisions to postpone others that were scheduled
1 House Committee on Elections, Bill Analysis, Tex. S.B. 1047, 64th Leg., R.S., (1975), https://lrl.texas.gov/LASDOCS/64R/SB1047/SB1047_64R.pdf#page=82; see also Tex. S. Con. Res. 65, 62nd Leg., R.S., 1971 Tex. Gen. Laws 3867 (ratifying Amendment).
2 ROA refers to the record on appeal in TDP v. Abbott, No. 20-50407 (5th Cir.).
4

in May. ROA.1003-04, 1049-500; Tex. Gov. Proclamation (Mar. 18, 2020, 10:00 a.m.). More recently, the Governor issued a proclamation doubling the time available for early voting in the July primary runoff. ROA.562-63. This will reduce lines and crowds while allowing the State to protect the integrity of the election by ensuring that voters still must present identification to ensure they are who they claim to be. Cf. Crawford v. Marion County Election Bd., 553 U.S. 181, 195-96 (2008) (plurality op. of Stevens, J.) (describing problem of voter fraud “perpetrated using absentee ballots”).
Texas’s Secretary of State has also issued numerous advisories and other forms of guidance that ensure the safety of voting by personal appearance.3 For example, on May 26, the Secretary issued detailed guidelines in consultation with the Texas Department of State Health Services, drawing heavily on guidance from the CDC and recommending steps that both voters and poll workers should take to ensure safety at the polls.4 She supplemented those guidelines on June 18 with additional protocols regarding (among other things) the spacing and cleaning of voting equipment, the provision of protective equipment to poll workers and voters, and how to address voters who appear to display symptoms of COVID-19.5
3 Much of this guidance has been directed to individual election officials, but the Secretary’s formal guidance is available on her website. Texas Secretary of State, Election advisories, https://www.sos.texas.gov/elections/laws/election-division-advisories.shtml.
4 Texas Secretary of State, Health Protocols for Voters, https://www.sos.texas.gov/elections/forms/health-protocols-for-voters.pdf.
5 Texas Secretary of State, Election Advisory No. 2020-19, Voting In Person During COVID19 (June 18, 2020), https://www.sos.texas.gov/elections/laws/advisory2020-19.shtml.
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Local election officials have similarly established protocols to ensure the safety of in-person voting. For example, Collin County’s early-voting clerk testified that, even before the Secretary of State’s most recent guidance, his jurisdiction planned to take numerous steps to promote social distancing, sanitize the polling place, and otherwise ensure that voting is conducted safely. ROA.572-74.
And there are surely more safeguards still to come as Texas officials diligently adapt election-related procedures as necessary to protect “the health and safety of voters, election workers, and local election officials and their staff.” Supra n.5.
C. Petitioners Pursue Unsuccessful Claims in State Court. This is not petitioners’ first effort to rewrite Texas election law. In late March, petitioners (with others) sued the Travis County Clerk in Texas state court.6 They asked the court to declare that “any eligible voter, regardless of age and physical condition,” is disabled and may vote by mail due to COVID-19. See ROA.24. The state trial court obliged. ROA.1904-05. This order was stayed when the State immediately filed a notice of interlocutory appeal. Texas, 2020 WL 2759629, at *3. Nevertheless, petitioners acted as if the state-court injunction remained in effect. A TDP official has testified that TDP expended considerable resources engaging in unspecified “voter contact methodologies.” ROA.1611-12. And its counsel repeatedly claimed in the media that the injunction remained in force.7
6 Garcia was not a named plaintiff in the state-court action, but the Texas Democratic Party (“TDP”) sued on behalf of its members. ROA.306. The TDP has asserted that she is a member to establish standing here. ROA.961.
7 Michael King, Paxton Threatens Election Officials with Prosecution, AUSTIN CHRON. (May 4, 2020), https://www.austinchronicle.com/daily/news/2020-05-04/paxton-threatens-election-officials-
6

In response to the “public confusion” caused by the state-court action and petitioners’ out-of-court conduct, Texas’s Attorney General provided guidance to county election officials about the meaning of state law. ROA.857. Because petitioners continued to misrepresent the status of Texas’s mail-in ballot requirements, the State sought a writ of mandamus asking the Texas Supreme Court to issue an order by May 27 requiring five county clerks to abide by the text of the Election Code. ROA.1830-59. On May 27, that court held “that a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail within the meaning of § 82.002(a).” Texas, 2020 WL 2759629, at *11. The state-court suit was nonsuited on June 9. Resp. Exh. 1.
D. Petitioners Bring This Duplicative Litigation in Federal Court. Hedging against such an unfavorable outcome in state court, petitioners filed this action in the Western District of Texas on April 7 but delayed service on respondents until well after the state-court injunction was entered. ROA.8. Petitioners’ preliminary injunction request asserted that the Texas Election Code (1) violates the Twenty-Sixth Amendment as-applied, (2) discriminates on the basis of age in violation of the Equal Protection Clause as-applied, (3) violates the First Amendment, and (4) is void for vagueness. ROA.112-18, 122-25, 127-28.8 And petitioners accused General Paxton of voter intimidation and seeking to suppress political
with-prosecution/; Tessa Weinberg, Paxton Warns Local Officials Against Encouraging Vote-byMail Due to Coronavirus Fears, FORT WORTH STAR-TELEGRAM (May 1, 2020), https://www.startelegram.com/news/politics-government/article242443406.html.
8 The operative complaint includes facial challenges and race-based claims too, but petitioners did not seek preliminary relief on those grounds. ROA.2153-54.
7

speech when he issued guidance about the meaning of state law. ROA.117-22, 12527. They sought relief indistinguishable from what they sought (unsuccessfully) in state court. Compare ROA.1904-05, with ROA.2028-29.
On May 19, the district court issued a 74-page opinion and order requiring noexcuse-mail-in balloting in Texas. Pet. App. 59a-148a. Unable to discredit respondents’ evidence of its significant measures to protect the safety of in-person voting, see, supra 4-6, the court largely disregarded it. The court also ignored the fact that the Supreme Court of Texas was to hear argument on the definition of “disability” in its Election Code within hours. The court concluded that, in light of the pandemic, all voters in Texas could vote by mail either as a matter of State law, ROA.2064, and/or under one of petitioners’ constitutional theories Pet. App. 126a.
A Fifth Circuit panel unanimously stayed the injunction pending appeal. In particular, the Court agreed that respondents are likely to prevail in this litigation and that they would be irreparably harmed should the injunction take immediate effect. The panel members identified three independent bases to stay the injunction: a “threshold procedural error,” id. at 56a (Costa, J., concurring in the stay), lack of a likelihood of success on the merits, id. at 19a, and the district court’s impermissibly broad remedy, id. at 50a-51a (Ho, J., concurring). That the panel unanimously rejected the district court’s legal conclusions is unsurprising; the district court’s opinion turns more on “[q]uot[ations] [from] the Declaration of Independence, the Gettysburg Address, the Bible, and various poems” than any particular legal standard. Id. at 5a.
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ARGUMENT To vacate the Fifth Circuit’s stay, petitioners must make a threefold showing. First, they must show that the case “could and very likely would be reviewed here upon final disposition in the court of appeals.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers); accord Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 506 (2013) (Scalia, J., concurring); id. at 507 (Breyer, J., dissenting). Second, they must show that the Fifth Circuit was “demonstrably wrong in its application of accepted standards in deciding to issue the stay.” Coleman, 424 U.S. at 1304. Third, they must show that their rights “may be seriously and irreparably injured by the stay.” Id. The application fails to make any of these required showings. I. This Court is Not Likely to Review the Interlocutory Decision Below. Petitioners cannot show that this Court is likely to grant a writ of certiorari to review the Fifth Circuit’s interlocutory order or the district court’s preliminary injunction. That is always a difficult showing to make. See Certain Named and Unnamed Non-Citizen Children v. Texas, 448 U.S. 1327, 1331 (1980) (Powell, J., in chambers) (noting “exceptional” nature of relief). Petitioners cannot meet that burden for three reasons: (1) review is premature due to the interlocutory posture, (2) there are numerous vehicle problems, and (3) no split of authority creates a certworthy issue. A. First and foremost, this Court is unlikely to grant review because the interlocutory posture renders the question unsuited to review. This Court’s “normal
9

practice [is to] deny[] interlocutory review,” even where cases present significant statutory or constitutional questions. Estelle v. Gamble, 429 U.S. 97, 114-15 (1976) (Stevens, J., dissenting). The Chief Justice best articulated this policy in Abbott v. Veasey, 137 S. Ct. 612 (2017). There, the Fifth Circuit had held that Texas’s voter ID law violated the Voting Rights Act and remanded “for further proceedings on an appropriate remedy.” Id. at 613 (Roberts, C.J., respecting the denial of certiorari). Texas sought immediate review. Id. Like here, the case came in the runup to an election, and as is true here, the validity of the challenged law had implications in other States. See id.; Br. of States of Indiana, et al. as Amici Curiae at 1, Abbott, 137 S. Ct. 612 (No. 16-393). The Court denied review, the Chief Justice explained, because “[t]he issues will be better suited for certiorari review” after final judgment. Abbott, 137 S. Ct. at 613.9
To be sure, this Court departs from its settled practice in a small set of “extraordinary cases.” STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE 283 (10th ed. 2013) (collecting cases). But such cases are “very rare indeed.” Am. Const. Co. v. Jacksonville T & K.W. Ry. Co., 148 U.S. 372, 385 (1895). Essentially, the question must be “effectively unreviewable” on final judgment. Will v. Hallock, 546 U.S. 345, 349-50 (2006) (addressing the related collateral-order doctrine). For ex-
9 See also, e.g., Mount Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944 (2012) (Alito, J., respecting the denial of certiorari); Wrotten v. New York, 560 U.S. 959 (2010) (Sotomayor, J.); Moreland v. Fed. Bureau of Prisons, 547 U.S. 1106, 1107 (2006) (Stevens, J.); accord Bhd. of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R. Co., 389 U.S. 327, 328 (1967) (per curiam).
10

ample, this Court may review questions of a sovereign’s immunity from suit, Ashcroft v. Iqbal, 556 U.S. 662, 671-72 (2009), or class-certification standards, WalMart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
Petitioners’ only claim to such extraordinary relief is that the question presented involves rules governing an upcoming election. That was, however, also true in Veasey, where the Court denied both interlocutory review and a request to vacate a stay. Veasey v. Perry, 136 S. Ct. 1823 (2016). More fundamentally, this theory directly contradicts this Court’s repeated instruction that federal courts should not rush to intervene in the run-up to an election. Republican Nat’l Comm., 140 S. Ct. at 1207. Last minute changes to election rules are likely to harm voters by engendering confusion, Purcell, 549 U.S. at 4-5, and to undermine a State’s “indisputably . . . compelling interest in preserving the integrity of its election process,” Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 (1989).
B. Adherence to the standard practice is especially warranted here, where a district court issued a preliminary injunction before Governor Abbott had been served and before respondents were able to plead and take discovery on any affirmative defenses. And, in this instance, the issues not yet resolved below include procedural obstacles likely to preclude this Court’s review of the merits.
1. The federal courts lack jurisdiction over this matter because the defendants do not enforce the challenged statutes. Petitioners’ claims are thus barred by sovereign immunity and Article III’s standing requirement.
11

a. Founded in federalism principles, sovereign immunity protects a State, state agency, or state officer from suit absent consent unless Congress has validly abrogated that immunity. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996). The only relevant route around this immunity here is the Ex parte Young doctrine, which permits a suit against a state official to enjoin violations of federal law. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011).
Under that doctrine, a defendant may be sued only if he has a sufficient connection to an actual violation of federal law. Ex parte Young 209 U.S. 123, 157 (1908); see also, e.g., Pennhurst State Sch. v. Halderman, 465 U.S. 89, 92 (1984). Here, respondents lack the requisite connection to the challenged conduct because, under state law, they do not enforce the mail-in ballot rules. See Texas, 2020 WL 2759629, at *10-11 (discussing how local early-voting clerks enforce mail-in ballot rules); Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972) (noting the limits of the Secretary’s role). Thus the Ex parte Young exception to sovereign immunity does not apply.
To be sure, the Texas Attorney General is authorized to prosecute election fraud. Tex. Elec. Code § 273.021(a). But petitioners have not alleged that he has sought to enforce the challenged statute. He has stated publicly that there are criminal consequences for encouraging individuals who are not eligible to vote by mail. ROA.857-59. But that is just a correct statement of Texas law, Tex. Elec. Code §§ 84.0041, 276.013, not a threat of enforcement any particular individual that could
12

be sufficient to invoke federal jurisdiction. Cf. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014).10
b. For similar reasons, respondents are also likely to show that petitioners lack standing. Standing is “not dispensed in gross”; it requires the Court to examine the type of harm that petitioners seek to vindicate. Town of Chester v. Laroe Estates, 137 S. Ct. 1645, 1650-51 (2017). Because “rights secured by the Constitution are protected only against infringement by governments,” petitioners must prove that respondents’ action prevented them from voting. Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978); see also Thompson v. Dewine, 959 F.3d 804, 810 (6th Cir. 2020) (per curiam). They are unlikely to do so because (among other reasons) the gravamen of their claim is the impact of COVID-19 on in-person voting. E.g., ROA.108-10, 214448. This harm is not chargeable to respondents; Texas’s Governor, Attorney General, and Secretary of State do not control COVID-19. Under state law, they do not even handle mail-in ballot applications; local officials do. Tex. Elec. Code §§ 83.005, 86.001(a). Thus, Appellees’ asserted injuries are not traceable to respondents’ actions. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
c. What’s more, as Judge Costa noted in concurrence, “[t]his was a testbook case for Pullman abstention.” Pet. App. 33 (Costa, J., concurring in the judgment) (citing R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941)). The district
10 While the Fifth Circuit concluded that respondents had not shown a likelihood of success as to these jurisdictional defects, Pet. App. 9a-19a, it reached that conclusion on the basis of limited briefing and an underdeveloped record.
13

court went out of its way to decide a disputed question of state law literally hours before the Texas Supreme Court heard oral argument on that exact question. See id. The district court had a clear duty to let the state courts weigh in first, yet did not. Pet. App. 33-34. That alone makes the preliminary injunction unlawful. See Pet. App. 34 (faulting district court’s “threshold procedural error”).
2. Due to petitioners’ delays in service, respondents have not yet had the opportunity to plead—let alone litigate—numerous affirmative defenses. Those defenses present vehicle problems here. For example, the law in question has been on the books for 45 years, which, under the doctrine of laches, precludes the equitable relief petitioners seek. Cf. Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 292 (1983) (“A constitutional claim can become time-barred just as any other claim can.”). Similarly, because petitioners dismissed their state-court claims to avoid an adverse ruling on the merits following Texas, that nonsuit had claimpreclusive consequences under state law. See, e.g., Epps v. Fowler, 351 S.W.3d 862, 868-69 (Tex. 2011) (discussing res judicata impact of nonsuits under state law). And state law determines the “preclusive effect of a prior state judgment in a subsequent action involving a claim within the exclusive jurisdiction of the federal courts.” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 374 (1996).
C. Finally, petitioners are wrong to insist that the Fifth Circuit’s decision “sharply conflicts with decisions” from other courts. App. 5. Petitioners’ counsel has candidly admitted that this is a “first-of-its kind lawsuit to compel the state to provide its voters with relatively unrestricted vote-by-mail,” Chad W. Dunn, et al., Legal
14

Theories to Compel Vote-by-Mail in Federal Court, 11 CAL. L. REV. ONLINE 166, 167 (2020), and he is still shopping for “additional theories” to test. Id. at 177.
The cases petitioners cite raise a different question: whether a state action or rule that completely prevents voters between the ages of 18 and 21 from participating in an election or class of elections complies with the Twenty-Sixth Amendment. In Jolicoeur v. Mihaly, 488 P.2d 1 (Cal. 1971), California’s registration rules prevented young voters from voting in local elections at their places of residence. Recognizing that all politics are local, the California Supreme Court held that the State could not deny “voters the right to help determine the resolution of issues which vitally affect them.” Id. at 576. Colorado Project-Common Cause v. Anderson, 495 P.2d 220, 221 (Colo. 1972), invalidated a rule limiting an initiative process to those over 21 on similar grounds. Walgren v. Board of Selectmen of Town of Amherst, 519 F.2d 1364, 1365 (1st Cir. 1975), did not address a broadly applicable rule, but it applied the same principle to a deliberate effort by local authorities to schedule an election to prevent college students from voting.
None of these cases holds, as petitioners suggest, that all age-based restrictions on voting mail-in ballots are unconstitutional. And none addresses the questions at the heart of this case: whether the “right to vote” in the Twenty-Sixth Amendment includes a right to vote by mail and whether a rule that applies equally to those aged 19 and 64 runs afoul of the Twenty-Sixth Amendment. Because no court has addressed those questions, the Court should allow them to percolate.
15

II. The Fifth Circuit’s Interlocutory Decision Applies the Correct Standard and Correctly Stayed the Preliminary Injunction. Petitioners have not shown that the stay is demonstrably wrong under the gov-
erning standard. In ruling on a motion for stay pending appeal, courts consider: (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.
Nken v. Holder, 556 U.S. 418, 426 (2009) (quotation marks and alterations omitted).
A stay pending appeal “simply suspends judicial alteration of the status quo.” Id. at 429. Here, the status quo is that most Texas voters vote in person. Respondents are using their best efforts—guided by medical experts and CDC recommendations— to make sure that process is managed safely and securely. Each of the Nken factors confirms that this status quo should be preserved during the appeal.
A. Respondents Are Likely to Succeed on All of Petitioners’ Claims. Respondents’ view of the merits is correct, and in any event, the district court’s remedy was unlawful.
1. The Twenty-Sixth Amendment Does Not Confer on Petitioners the Right to Vote by Mail.
The Fifth Circuit correctly held that the constitutional right to vote does not extend to a right to vote by mail (whether under the Twenty-Sixth Amendment or
otherwise). Petitioners’ claims are reviewed under the rational-basis standard, which section 82.003 easily satisfies.
a. Petitioners’ various claims that Texas has abridged their (or their members’)
right to vote fail because the right to vote is not at issue. Instead, this case turns on
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“a claimed right to receive [and cast] absentee ballots.” McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969). Texas encourages petitioners to vote by other means, and the Constitution does not guarantee them a right to vote by mail. Id.
In McDonald, the plaintiffs were incarcerated persons from the Chicago area who claimed a right to vote by mail because they could not “readily appear at the polls.” Id. at 803. Like Texas, Illinois law “made absentee balloting available to [only] four classes of persons,” including (among others) those who would be absent from their precincts or suffered from disabilities. Id. at 803-04. Because incarcerated persons were not among the limited classes, plaintiffs’ applications “were refused.” Id. at 804. Examining Illinois law under an equal-protection framework, the Court held that so long as the inmates had another means of voting, the “Illinois statutory scheme” would not “ha[ve] an impact on [their] ability to exercise the fundamental right to vote.” Id. Though it might have been easier for an inmate to vote by mail, no state action “specifically disenfranchise[d]” the plaintiffs. Id. at 808.
This Court has recognized that the right to vote includes a right to vote by mail only when some other state action entirely prevents a class of voters from exercising the franchise. Specifically, in Goosby v. Osser, 409 U.S. 512 (1973), the Court held that “the Pennsylvania statutory scheme absolutely prohibits [incarcerated persons] from voting” by denying them absentee ballots, access to polling places in prisons, or transportation to a poll. Id. at 521-22. The Court found that combination of laws unconstitutionally disenfranchised voters. Id.; see also O’Brien v. Skinner, 414 U.S. 524, 530 (1974). There is a vast difference between “a statute which ma[kes] casting
17

a ballot easier for some who were unable to come to the polls” and a “statute absolutely prohibit[ting]” someone else “from exercising the franchise.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626 n.6 (1969).
Because Texas has not “specifically disenfranchised” petitioners, its vote-bymail rules are subject to rational-basis review. Petitioners would prefer to vote by mail due to the pandemic, ROA.1034, 1038, 1613, but McDonald did not ask what the plaintiffs would have preferred. 394 U.S. at 808 n.6. Absent proof that other means of voting are unavailable, “the right to vote” was not “at stake.” Id. at 807.
b. The Twenty-Sixth Amendment does not change this. The Amendment’s language, history, and the few cases that have interpreted it all confirm that it leaves the McDonald rule regarding mail-in ballots intact. The Twenty-Sixth Amendment, proposed and ratified within a few short months in 1971, provides that: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged . . . on account of age.”
The Amendment does not define the term “right to vote,” so it “must be interpreted by reference to historical practices and understandings” at the time of ratification. Town of Greece v. Galloway, 572 U.S. 565, 576 (2014) (quotation marks omitted). This includes other times the same term is used in the Constitution, and “the affect attributed to them before the amendment was adopted.” Eisner v. Macomber, 252 U.S. 189, 205 (1920). McDonald is particularly instructive because it was decided little more than two years before the amendment was ratified. As “the Amendment contains nothing repudiat[ing] or challenging” McDonald, “the Amendment at least
18

impliedly” ratifies McDonald’s understanding of the right to vote. Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 18 (1916); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 322-26 (2012).
This interpretation is confirmed by the history of the Amendment itself, which was an effort to extend the right to vote as it was then understood to individuals between the ages of 18 and 21. Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 YALE L.J. 1168, 1184-95 (2012). If anything, that history reflects that absentee voting was seen as an inadequate substitute for in-person voting because it imposes “special burdens” on voters. S. Rep. No. 91-26 14 (1971).
The limited effect of the Amendment has also been recognized in the few cases interpreting it. For example, in Nashville Student Organizing Committee v. Hargett, the court upheld a voter ID law because even if younger voters were less likely to have an acceptable form of ID, the law “[wa]s not an abridgement of the right to vote.” 155 F. Supp. 3d 749, 757 (M.D. Tenn. 2015). As the court explained, “the handful of cases” finding a violation of the Twenty-Sixth Amendment “have involved state actions that actually blocked young people from voting rather than simply exclud[ing] measures that would make it easier for them to do so.” Id. at 757-58. As discussed above (at 15), the cases upon which petitioners rely fall into this category.
But unlike the laws at issue in petitioners’ cases, Texas law does not disenfranchise anyone. To the contrary, Texas election officials have taken numerous steps to make sure that voting in person—as Texas’s Legislature has required—will be safe.
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Supra at 4-6. As a result, Texas’s mail-in-ballot rules do not implicate the right to vote and are subject only to rational-basis review. McDonald, 394 U.S. at 807.
c. Texas’s decision to facilitate voting by those over 65 is “rationally related to legitimate government interests.” Washington v. Glucksberg, 521 U.S. 702, 728 (1997). Section 82.003 rationally recognizes that, as a group, individuals over 65 face greater challenges in visiting the polls. Many reside in nursing homes and have limited mobility.11 Although others may also have difficulties reaching the polls, the line need not be “perfectly tailored,” so long as the distinction is not arbitrary. Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782 (2019); see also Tex. Elec. Code § 82.002(a) (permitting voters with a “disability” to vote by mail).
Texas’s conclusion that the problems facing older voters are unique is not novel. Some States allow all voters to vote by mail, but among States that limit vote-bymail to certain citizens, “[i]t is . . . common to provide this option to elderly voters.”12 Moreover, these statutes are not new. Texas amended its law to allow those over 65 to vote by mail in the same bill that extended the right to vote to those aged 18 to 21. Supra at 3-4. That a law is passed immediately after a constitutional amendment is strong evidence that the law was seen to be consistent with the amendment. See Town of Greece, 572 U.S. at 576; see also, e.g., Atwater v. Lago Vista, 532 U.S. 318,
11 Texas Health and Human Services, Long Term Care, https://hhs.texas.gov/services/aging/long-term-care.
12 National Conference of State Legislatures, Voting Outside the Polling Place: Absentee, AllMail, and Other Voting at Home Options, Qualifying for an Absentee Ballot (June 9, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx; see also, e.g., Ind. Code § 3-11-10-24(a)(5); Ky. Rev. Stat § 117.085(1)(a)(8); La. Stat. § 18:1303(J).
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337-40 (2001). That such laws have existed across multiple States without challenge or controversy for 45 years is no surprise: they make good sense.
d. Even if a more stringent test applies, petitioners are not likely to prevail. Because “[e]very decision that a State makes in regulating an election will, inevitably, result in somewhat more inconvenience for some voters than for others,” this Court has developed a balancing test for claims related to the franchise. Lee v. Va. State Bd. of Elec., 843 F.3d 592, 601 (4th Cir. 2016). Under this standard, the Court must first identify the relevant state action and then “weigh ‘the character and magnitude of the asserted injury” to the plaintiff’s constitutionally protected right “against the precise interests put forward by the State as justification for the burden imposed.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 790, 789 (1983)). State actions imposing severe burdens on the right to vote are closely scrutinized. Id. “Lesser burdens, however, trigger less exacting review.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
The specific state action here is unclear because petitioners assert an as-applied challenge based on unspecified “Election Conditions.” ROA.31. But only an intentional governmental action can form the basis of a constitutional claim. Michael T. Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 EMORY L.J. 545, 589 & nn. 315, 320-24 (2018) (collecting cases). Petitioners’ proposed theories run into two roadblocks.
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First, petitioners’ arguments fail because the pandemic is to blame for the “Conditions” petitioners dislike, not respondents. Because a virus cannot violate the Constitution, these “Election Conditions” do not support a claim.
Second, if petitioners’ challenged “Election Conditions” refer to “[s]ubjective risk assessments concerning the need” to change the rules of an election to protect voters against a virus, petitioners present a “quintessentially political question” which “the judiciary should not be in a position of second-guessing.” Morley, supra, at 598-99; see Baker v. Carr, 369 U.S. 186, 217 (1969). In particular, there is no “judicially discoverable and manageable standard” for when a public-health emergency requires a State to change from a predominately in-person voting model to an entirely vote-by-mail election system. Baker, 369 U.S. at 217.
Courts may look to many sources to find such a standard, but the result must be “grounded in a ‘limited and precise rationale,’” and must be “‘clear, manageable, and politically neutral.’” Rucho v. Common Cause, 139 S. Ct. 2484, 2498 (2019) (quoting Vieth v. Jubelirer, 541 U.S. 267, 306-08 (2004) (Kennedy, J., concurring)). Neither petitioners nor the district court attempted to articulate such a standard.13
13 To the extent petitioners object to the Texas Legislature’s decision to limit mail-in ballots, their claims fail under Anderson and Burdick. Texas requires in-person voting to deter fraud. The risk of voter fraud “is real,” Crawford, 553 U.S. at 195-96; “could affect the outcome of a close election,” id.; and “is a documented problem” with absentee ballots, id. at 225 (Souter, J., dissenting). The district court received evidence that this is a “serious problem” in Texas, ROA.781-82. It should have weighed that evidence and the evidence that the State’s protective measures will protect voters, e.g., ROA.595-621, 607, against the alleged “burden [on] the plaintiff ’s rights.” Burdick, 504 U.S. at 434. The district court did not. ROA.2124-25.
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2. Respondents are likely to show that the district court’s remedy was improper.
Even if the Court were to hold that the Twenty-Sixth Amendment required equal access to mail-in ballots for voters of all ages, the Fifth Circuit still appropriately stayed the injunction because the district court ordered the wrong remedy. Petitioners do not claim a constitutional right to a mail-in ballot, only equality based on age. App. 11. But “[h]ow equality is accomplished . . . is a matter on which the Constitution is silent.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698 (2017). That silence must be filled by the political branches. Olson v. DEA, 878 F.2d 1458, 1464 (D.C. Cir. 1989) (Ginsburg, J.). Typically, when an exception creates a constitutional problem, the exception yields to the general rule, not the general rule to the exception. See Morales-Santana, 137 S. Ct. at 1698-1701.
As Texas’s highest court just confirmed, Texas’s political branches have consistently chosen to allow voting by mail only by providing exceptions to the general rule of in-person voting. Texas, 2020 WL 2759629, at *8. Under those circumstances, the district court should have “level[ed] down” and eliminated the exception that allows those over 65 to vote by mail and thereby creates the constitutional problem, not leveled up so that the exception swallows Texas’s long-established law requiring in-person voting. Morales-Santana, 137 S. Ct. at 1698.
Petitioners assert (at 15 n.1) that leveling down is not possible because many citizens over 65 have already applied to vote by mail this year. They may have applied, but ballots have not yet been sent for at least the November election, Tex. Elec. Code § 86.004(a), or tabulated for the primary, id. § 87.0241. Informing voters
23

over 65 who have applied for mail-in ballots that they must appear on election day would be logistically difficult, but this is why the Court has stated that federal courts should not change voting rules this close to an election. Purcell, 549 U.S. at 4-5.
B. Respondents Will Suffer Irreparable Injury if the Stay is Lifted.
The preliminary injunction causes irreparable injury because it impedes the enforcement of Texas’s Election Code. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct. 1, 3 (2012) (alterations omitted) (Roberts, C.J. in chambers). This principle is not applied for the sake of state officials. Instead, the “ultimate purpose” of federalism and of guarding state sovereignty “is to protect the liberty and security of the governed.” Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991).
Those concerns are particularly important here. It is one of the most fundamental obligations of the State to enact clear and uniform laws for voting to ensure “fair and honest” elections, to bring “order, rather than chaos, [to] the democratic process[],” and ultimately to allow the vote to be fully realized. Storer v. Brown, 415 U.S. 724, 730 (1974). Although COVID-19 indisputably represents a public-health crisis, that cannot and must not change our structure of government.
C. The Other Stay Factors Favor Respondents. The remaining Nken factors favor respondents. As described below (Part III), the Fifth Circuit correctly held that petitioners have not shown a likelihood of irrep-
24

arable harm absent an injunction. And the public interest “merge[s]” with respondents “when the Government is the opposing party.” Nken, 556 U.S. at 435. Because the injunction was wrong on the merits and the remedy and because the other factors favor respondents, the application fails to show that the Fifth Circuit was “demonstrably wrong in its application” of the Nken factors. Coleman, 424 U.S. at 1304. III. The Applicants Face No Threat of Serious or Irreparable Injury from
the Stay Pending Appeal. Petitioners also fail to show that the stay causes them irreparable injury. Id. The likelihood of irreparable harm must be judged “in light of” preventative measures already in place. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22-23 (2008) (examining harm “in the absence of an injunction”). Petitioners cannot make that showing for at least two reasons: (1) the injunction is unnecessary to protect voters; and (2) petitioners’ own dilatory litigation conduct confirms that there is neither an emergency nor a threat of irreparable harm that justifies this Court’s intervention. A. Petitioners make three assertions of irreparable harm. App. 19-21. None meets the standard to vacate the stay. First, petitioners assert that if the stay remains in effect, voters will lose “the ability to cast a mail-in ballot provided by the district court’s order.” Id. at 19. But mere inability to take advantage of the district court’s order cannot be enough to vacate a stay because that happens any time an intermediate court of appeals stays a trial court order pending appeal. Second, petitioners speculate that some “harm to their health, and potentially even their lives,” will result if they vote in person. Id. But the record does not support
25

that allowing individual petitioners to vote by mail is necessary or sufficient to prevent them from contracting COVID-19. One of the flaws with the district court order is that it ignored that petitioners offered no evidence that respondents have taken any action that caused them harm. To the contrary, their complaint is that COVID19 may harm them. ROA.77-82. But a virus is not a state actor.
Moreover, the record does not suggest that the steps respondents have taken are inadequate to protect voters. Indeed, petitioners rely largely on the record developed in state court, where their witnesses admitted that they had not taken account of measures taken by the State as of April 15 (the date of the state-court hearing) to ensure that Texas elections are safe. E.g., ROA.225, 228-29, 250-53. These witnesses could not have taken account of measures taken in the intervening time.
Third, petitioners assert that “[e]ligible voters who avoid those irreparable harms by forgoing the right to vote because of fear of contacting COVID-19 suffer a different irreparable injury.” App. 19. But again, that choice has not been forced by the State. A court “cannot hold private citizens’ decisions to stay home for their own safety against the State”—particularly where, as here, the State has taken numerous steps to protect the safety of in-person voting. Thompson, 959 F.3d at 810.
B. Petitioners’ own dilatory litigation conduct effectively concedes that there is no threat of irreparable harm that justifies this Court’s involvement on an emergency basis. The Fifth Circuit stayed the district court’s injunction on May 20. Pet. App. 7a-8a. It issued a briefing schedule the same day. Resp. Exh. 2. On May 22, the Fifth Circuit issued an order clearly indicating that it would not rule on the larger
26

stay until after the Texas Supreme Court was expected to rule on the State’s mandamus petition on May 27. Resp. Exh. 3. Petitioners took no action to expedite proceedings. The Fifth Circuit issued its opinion maintaining the stay pending appeal on June 4. Pet. 1a. Petitioners again did nothing. They cannot fairly criticize the Fifth Circuit for declining to grant relief that they did not request.
An additional twelve days elapsed before petitioners filed this application, which asks this Court to disrupt its normal process and decide on an emergency basis the constitutionality of a law that has existed unchallenged for 45 years. When parties face a true emergency that only this Court can resolve, they say so immediately; they do not wait weeks. Compare Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2085 (2017) (per curiam) (noting emergency motions filed one day after adverse decision), with California v. Texas, No. 19-840 (U.S. Jan. 21, 2020) (denying emergency relief when petitioners waited 16 days after an adverse decision).
For their part, Respondents have sought relief promptly due to the impact that rewriting Texas’s mail-in ballot rules would have on the upcoming election. When the state trial court issued its injunction, the State filed a notice of appeal that stayed the injunction within 30 minutes. Compare ROA.372, with Resp. Exh. 4. When a state intermediate court temporarily reinstated the injunction, ROA.1483, the State sought and was granted emergency relief from the Texas Supreme Court in about 30 hours. Resp. Exh. 5. And when the federal district court issued its injunction at 4:34 p.m. on May 19, Resp. Exh. 6, respondents sought an emergency stay in the Fifth Circuit at 10:56 a.m. the next day, Resp. Exh. 7.
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By contrast, petitioners waited to seek relief until two weeks after the Fifth Circuit’s stay opinion, and nearly four weeks after the district court’s order was initially stayed. And they timed their filing so that the Court would need to rule on their request less than a month before an election. Their dilatory conduct in attacking a decades-old law on the eve of an election counsels strongly against granting relief.
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CONCLUSION
The Court should deny the application to vacate the stay.

Respectfully submitted.

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant
Attorney General

/s/ Kyle D. Hawkins KYLE D. HAWKINS Solicitor General
Counsel of Record
LANORA C. PETTIT Assistant Solicitor General

Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 Kyle.Hawkins@oag.texas.gov

Counsel for Respondents

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CERTIFICATE OF SERVICE I certify that this document has been filed with the clerk of the Court and served by electronic mail and Federal Express on June 22, 2020, on counsel of record in this case.
/s/ Kyle D. Hawkins KYLE D. HAWKINS Solicitor General Counsel for Respondents
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EXHIBIT 1

No. 14-20-00358-CV __________________________________________________________________
IN THE FOURTEENTH COURT OF APPEALS HOUSTON TEXAS
__________________________________________________________________
The State of Texas Intervenor-Defendant – Appellant
v. Texas Democratic Party, et al.
Plaintiffs – Appellees &
Zachary Price, et al. Intervenor-Plaintiffs – Appellees
__________________________________________________________________
On Appeal from the District Court of Travis County, 201st Judicial District Cause No. D-1-GN-20-001610, Hon. Tim Sulak, Presiding.
__________________________________________________________________
APPELLEES’ UNOPPOSED JOINT MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION
__________________________________________________________________
To the Honorable Justices of the Fourteenth Court of Appeals:
Appellees, Texas Democratic Party et al. and Zachary Price et al., under the
authority of Texas Rules of Appellate Procedure 10.1 and 42.3, move the Court to
dismiss the pending appeal for want of jurisdiction due to the absence of a case or
controversy.
1. On June 09, 2020, Appellees nonsuited all of their claims against
Defendant Dana DeBeauvoir, in her official capacity as Travis County Clerk, and
1

Intervenor-Defendant/Appellant The State of Texas. A copy of Appellee’s Notice of Nonsuit is attached as Exhibit A. Appellees’ nonsuit followed the Texas Supreme Court decision in In re State of Texas, No. 20-0394, 2020 WL 2759629 (Tex. May 27, 2020).
2. Under the Texas Rules of Civil Procedure, “[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes.” TEX. R. CIV. P. 162. “Under Texas law, parties have an absolute right to nonsuit their own claims for relief at any time during the litigation until they have introduced all evidence other than rebuttal evidence at trial.” Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex. 2008).
3. Rule 162 applies in this case because Appellees have filed their nonsuit while this matter is pending on interlocutory appeal from the trial court’s grant of Appellee’s motion for a temporary injunction and Defendants’ pretrial plea to the jurisdiction. See Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (holding that plaintiff's nonsuit of claims against defendant asserting sovereign immunity was effective upon filing and mooted the case or controversy between the parties, even though nonsuit was taken after defendant had filed an interlocutory appeal). As in this case, the appellee in Shultz filed a nonsuit while the appellant’s interlocutory appeal from the denial of
2

its plea to the jurisdiction was pending in the court of appeals. Id. at 100. Thereafter, the appellee filed a motion to dismiss the appellant’s interlocutory appeal for want of jurisdiction, which the court of appeals denied. Id. The Supreme Court “conclude[d] that the nonsuit deprived the court of appeals of jurisdiction. . . .” Id. “Accordingly, without hearing oral argument, [the Supreme Court] grant[ed] the petition for review, vacate[d] the court of appeals’ order, and dismiss[ed] the appeal for want of jurisdiction.” Id. at 101.
4. Similarly, a nonsuit also moots a temporary injunction, because the temporary injunction ceases to exist upon nonsuit. Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (“In this case, the trial court had jurisdiction over the underlying case and correctly granted the nonsuit, irrespective of the fact that an appeal had been perfected. As a consequence of the trial court's granting the nonsuit, the temporary injunction ceased to exist and the appeal became moot.”).
5. Supreme Court precedent therefore compels dismissal here. “A nonsuit ‘extinguishes a case or controversy from the moment the motion is filed or an oral motion is made in open court; the only requirement is the mere filing of the motion with the clerk of the court.’” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862– 63 (Tex. 2010) (quoting Shultz, 195 S.W.3d at 100). When, as here, “a claim is timely nonsuited, the controversy as to that claim is extinguished, the merits become
3

moot, and jurisdiction as to the claim is lost.” City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011); see Villafani, 251 S.W.3d at 469 (“One unique effect of a nonsuit is that it can vitiate certain interlocutory orders, rendering them moot and unappealable.”).
6. “While the date on which the trial court signs an order dismissing the suit is the ‘starting point for determining when a trial court's plenary power expires,’ a nonsuit is effective when it is filed.” Shultz, 195 S.W.3d at 100 (quoting In re Bennett, 960 S.W.2d 35, 38 (Tex.1997)). Likewise, “[a]lthough [Rule 162] permits motions for costs, attorney's fees, and sanctions to remain viable in the trial court, it does not forestall the nonsuit's effect of rendering the merits of the case moot.” Id. “Even the automatic stay of section 51.014(b) of the Texas Civil Practice and Remedies Code that arises from the filing of a notice of appeal from the denial of a plea to the jurisdiction does not defeat the immediate effect of a nonsuit at the moment the notice of nonsuit was filed.” Bush, Trustee for the Found. Sch. Fund v. Hines, No. 10-19-00340-CV, 2019 WL 6769624, at *1 (Tex. App.—Waco Dec. 11, 2019, no pet. h.).
7. Because Appellees have nonsuited all of their claims against all the Defendants/Appellants, there is no live controversy for the Court to decide, and this Court lacks jurisdiction over the pending interlocutory appeal. Shultz, 195 S.W.3d at 100-01. “Appellate courts are prohibited from deciding moot controversies
4

because the separation-of-powers article prohibits advisory opinions on abstract
questions of law.” Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010). Accordingly,
the Court should grant Appellee’s unopposed motion and dismiss the appeal for want
of jurisdiction. See Shultz, 195 S.W.3d at 100-01; see also Heckman v. Williamson
County, 369 S.W.3d 137, 162 (Tex. 2012) (“If a case is or becomes moot, the court
must vacate any order or judgment previously issued and dismiss the case for want
of jurisdiction.”); Olley v. Raamco Tx. Properties, No. 01-11- 00321-CV, 2013 WL
1087729, at *1 (Tex. App.—Houston [1st Dist.] Mar. 14, 2013, no pet.) (dismissing
appeal for lack of jurisdiction following nonsuit).
8. Appellant State of Texas does not oppose the dismissal of this appeal in light
of Plaintiffs/Appellees non-suit of their claims.
PRAYER
Appellees ask this Court to dismiss the Appellants’ interlocutory appeal for
want of jurisdiction.
Respectfully submitted,
By: /s/ Joaquin Gonzalez Joaquin Gonzalez Texas Bar No. 24109935 Joaquin@texascivilrightsproject.org Mimi Marziani Texas Bar No. 24091906 mimi@texascivilrightsproject.org Rebecca Harrison Stevens Texas Bar No. 24065381 beth@texascivilrightsproject.org
5

TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741 512-474-5073 (Telephone) 512-474-0726 (Facsimile)
Edgar Saldivar TX Bar No. 24038188 Thomas Buser-Clancy TX Bar No. 24078344 Andre Segura TX Bar No. 24107112
ACLU FOUNDATION OF TEXAS, INC. P.O. Box 8306 Houston, TX 77288 Telephone: (713) 325-7011 Fax: (713) 942-8966 esaldivar@aclutx.org tbuser-clancy@aclutx.org asegura@aclutx.org
Sophia Lin Lakin** New York Bar No. 5182076 Dale E. Ho** New York Bar No. 4445326
AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 519-7836 Fax: (212) 549-2654 slakin@aclu.org dho@aclu.org
** Pro hac vice application forthcoming
6

ATTORNEYS FOR INTERVENOR-PLAINTIFFS
TEXAS DEMOCRATIC PARTY
By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC
7

SBN #: 24059153 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com ATTORNEYS FOR PLAINTIFFS
8

CERTIFICATE OF CONFERENCE By email communication with Defendant/Appellant’s Counsel Lanora Pettit on June 09, 2020, Appellant has stated that it is unopposed to this Motion.
/s/ Joaquin Gonzalez CERTIFICATE OF SERVICE I hereby certify that on June 09, 2020, a true and correct copy of the foregoing document was served electronically upon Lanora Pettit, attorney for Appellant.
/s/ Joaquin Gonzalez
9

Exhibit A
Plaintiffs’ Notice of Nonsuit
10

No. D-1-GN-20-001610

6/9/2020 12:00 PM Velva L. Price District Clerk Travis County
D-1-GN-20-001610 Alexus Rodriguez

TEXAS DEMOCRATIC PARTY, et. al §

§

§

Plaintiffs,

§

§

and

§

§

ZACHARY PRICE, LEAGUE OF

§

WOMEN VOTERS OF TEXAS,

§

LEAGUE OF WOMEN VOTERS

§

AUSTIN AREA, MOVE TEXAS

§

ACTION FUND, WORKERS DEFENSE §

ACTION FUND,

§

§

§

Intervenor-Plaintiffs,

§

§

v.

§

§

DANA DEBEAUVOIR

§

§

Defendant,

§

§

and

§

§

STATE OF TEXAS

§

§

Intervenor-Defendant.

§

IN THE DISTRICT COURT TRAVIS COUNTY, TEXAS 201st JUDICIAL DISTRICT

Plaintiffs’ and Intervenor-Plaintiffs’ Notice of Non-Suit
TO THE HONORABLE JUDGE OF THIS COURT: Plaintiffs, TEXAS DEMOCRATIC PARTY, AND GILBERTO HINOJOSA, IN HIS
CAPACITY AS CHAIRMAN OF THE TEXAS DEMOCRATIC PARTY, JOSEPH DANIEL CASCINO AND SHANDA MARIE SANSING, (hereinafter referred to as Plaintiffs) and ZACHARY PRICE, LEAGUE OF WOMEN VOTERS OF TEXAS, LEAGUE OF WOMEN
1

VOTERS AUSTIN AREA, MOVE TEXAS ACTION FUND, WORKERS DEFENSE ACTION FUND (hereinafter referred to as Intervenor-Plaintiffs), brought suit seeking injunctive and declaratory relief that lack of immunity to COVID-19 alone is sufficient to meet the eligibility criteria to vote by mail as set forth in Section 82.002 of the Texas Election Code. Plaintiffs’ and Intervenor-Plaintiffs’ hereby non-suit their claims against Defendant DANA DEBEAUVOIR and Intervenor-Defendant STATE OF TEXAS with prejudice to the refiling of same, pursuant to Rule 162 of the Texas Rules of Civil Procedure.

All costs of court are taxed against the party incurring same. The docket clerk is requested to enter this notice into the minutes of the Court.

Dated this 9th date of June, 2020.

Respectfully submitted,
TEXAS DEMOCRATIC PARTY
By: /s/ Chad W. Dunn Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 717-9822 Facsimile: (512) 515-9355 chad@brazilanddunn.com
K. Scott Brazil State Bar No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500
2

Law Office of Dicky Grigg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: 512-474-6061 Facsimile: 512-582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC SBN #: 24059153 405 N. Saint Mary’s, Ste. 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
/s/ Joaquin Gonzalez Joaquin Gonzalez Texas Bar No. 24109935 Joaquin@texascivilrightsproject.org Mimi Marziani Texas Bar No. 24091906 mimi@texascivilrightsproject.org Rebecca Harrison Stevens Texas Bar No. 24065381 beth@texascivilrightsproject.org
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741 512-474-5073 (Telephone) 512-474-0726 (Facsimile)
Edgar Saldivar TX Bar No. 24038188 Thomas Buser-Clancy TX Bar No. 24078344 Andre Segura TX Bar No. 24107112
ACLU FOUNDATION OF TEXAS, INC. P.O. Box 8306 Houston, TX 77288 Telephone: (713) 325-7011 Fax: (713) 942-8966
3

esaldivar@aclutx.org tbuser-clancy@aclutx.org asegura@aclutx.org
Sophia Lin Lakin** New York Bar No. 5182076 Dale E. Ho** New York Bar No. 4445326 AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 519-7836 Fax: (212) 549-2654 slakin@aclu.org dho@aclu.org ** Pro hac vice application on file ATTORNEYS FOR INTERVENORPLAINTIFFS
CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing response has been sent via the Court’s electronic filing system to all counsel of record on June 9, 2020.
/s/ Chad W. Dunn Chad W. Dunn
4

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Gwen Kelly on behalf of Chad Dunn Bar No. 24036507 gwen@brazilanddunn.com Envelope ID: 43585969 Status as of 06/09/2020 12:21:27 PM -05:00
Associated Case Party: Texas Democratic Party

Name

BarNumber Email

TimestampSubmitted Status

Chad Dunn

chad@brazilanddunn.com 6/9/2020 12:00:42 PM SENT

Associated Case Party: Zachary Price

Name

BarNumber Email

TimestampSubmitted Status

Joaquin Gonzalez

joaquin@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Rebecca Harrison Stevens

beth@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Mimi Marziani

mimi@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Associated Case Party: League of Women Voters of Texas

Name

BarNumber Email

TimestampSubmitted Status

Joaquin Gonzalez

joaquin@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Mimi Marziani

mimi@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Rebecca Harrison Stevens

beth@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Associated Case Party: League of Women Voters of Austin-Area

Name

BarNumber Email

TimestampSubmitted Status

Joaquin Gonzalez

joaquin@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Rebecca Harrison Stevens

beth@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Mimi Marziani

mimi@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Associated Case Party: MOVE Texas Action Fund

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Gwen Kelly on behalf of Chad Dunn Bar No. 24036507 gwen@brazilanddunn.com Envelope ID: 43585969 Status as of 06/09/2020 12:21:27 PM -05:00
Associated Case Party: MOVE Texas Action Fund

Name

BarNumber Email

TimestampSubmitted Status

Joaquin Gonzalez

joaquin@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Rebecca Harrison Stevens

beth@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Mimi Marziani

mimi@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Associated Case Party: Workers Defense Action Fund

Name

BarNumber Email

TimestampSubmitted Status

Joaquin Gonzalez

joaquin@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Rebecca Harrison Stevens

beth@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Mimi Marziani

mimi@texascivilrightsproject.org 6/9/2020 12:00:42 PM SENT

Case Contacts
Name Scott Brazil Martin Golando Richard Alan Grigg Edgar Saldivar Thomas Buser-Clancy Andre Segura Sophia LinLakin Dale E.Ho Sherine Thomas Gwen Kelly Mel Noyola

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Gwen Kelly on behalf of Chad Dunn Bar No. 24036507 gwen@brazilanddunn.com Envelope ID: 43585969 Status as of 06/09/2020 12:21:27 PM -05:00
Case Contacts

Leslie Dippel

leslie.dippel@traviscountytx.gov

6/9/2020 12:00:42 PM SENT

EXHIBIT 2

Pettit, Lanora

From: Sent: To: Subject:

cmecf_caseprocessing@ca5.uscourts.gov Wednesday, May 20, 2020 11:12 AM Abrams, Michael 20-50407 Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al "Briefing Notice"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
United States Court of Appeals for the Fifth Circuit
Notice of Docket Activity
The following transaction was entered on 05/20/2020 at 11:07:58 AM CDT and filed on 05/20/2020 Case Name: Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al Case Number: 20‐50407 Document(s): https://urldefense.proofpoint.com/v2/url?u=https‐3A__ecf.ca5.uscourts.gov_docs1_00505423033‐3Fuid‐ 3D27f9ab1a03e5804c&d=DwICaQ&c=Z_mC1sqOcfBCM1ZptXokOj7_ss37GsaAMzCZyvOxKN4&r=MxYvaQcKXsxiOXeNNhl BRoYG2jIIMEOTe7v8RPrMov4&m=tP2PyryLw4sJRwTKt2vFotiuFikhdrrOkLlLnOYhcTU&s=hVpqPLfTyLFiQ1suQ72qTwS9I42 0h3stiXmPFyqF8DA&e=
Docket Text: BRIEFING NOTICE ISSUED A/Pet's Brief Due on 06/29/2020 for Appellants Greg Abbott, Governor of the State of Texas, Ruth Hughs and Ken Paxton. [20‐50407] (CMB)
Notice will be electronically mailed to:
Mr. Michael Abrams: michael.abrams@oag.texas.gov, katrina.shanks@oag.texas.gov, laura.redd@oag.texas.gov Mr. Kembel Scott Brazil: scott@brazilanddunn.com, duncha@sbcglobal.net, cyndiwoodfin@sbcglobal.net, Karen_Nix@sbcglobal.net Mr. Kyle Douglas Hawkins: kyle.hawkins@oag.texas.gov, sabrina.wycoff@oag.texas.gov, maria.williamson@oag.texas.gov

The following document(s) are associated with this transaction: Document Description: BR‐1 Letter Original Filename: /opt/ACECF/live/forms/CindyBroadhead_2050407_9317064_AppellantBriefingNotice‐ BR1_148.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105048708 [Date=05/20/2020] [FileNumber=9317064‐0] [8b352e9fd141b13e39339d0511baf23b2aed203293e27fbb03824ad76d1e7f9f17cea12054190d83ff6046928454b590436 7e10e8130bacadea9e2e691ca5e12]] Recipients:
Mr. Michael Abrams Mr. Kembel Scott Brazil Mr. Kyle Douglas Hawkins

1

Case: 20-50407 Document: 00515423033 Page: 1 Date Filed: 05/20/2020

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130
May 20, 2020

Mr. Michael Abrams Office of the Attorney General General Litigation Division P.O. Box 12548 Austin, TX 78711-2548

Mr. Kyle Douglas Hawkins Office of the Attorney General Office of the Solicitor General P.O. Box 12548 (MC 059) Austin, TX 78711-2548

No. 20-50407

Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al USDC No. 5:20-CV-438

Dear Mr. Abrams, Mr. Hawkins,
We have docketed the appeal as shown above, and ask you to use the case number for future inquires. You can obtain a copy of our briefing checklist on the Fifth Circuit's website "http://www.ca5.uscourts.gov/docs/default-source/forms-anddocuments---clerks-office/rules/brchecklist".
Briefing Notice: The record is complete for purposes of the appeal, see FED. R. APP. P. 12. Appellant's brief and record excerpts are due within 40 days of the date shown above, see FED. R. APP. P. & 5TH CIR. R. 28, 30, and 31. See also 5TH CIR. R. 30.1.2 and 5TH CIR. R. 31.1 to determine if you have to file electronic copies of the brief and record excerpts. [If required, electronic copies MUST be in Portable Document Format (PDF).]
Record Excerpts: 5TH CIR. R. 30.1.7(c) provides that the electronic PDF version of the record excerpts should contain pages representing the "tabs" identified in the index of the document. However, we remind attorneys that the actual paper copies of record excerpts filed with the court must contain actual physical tabs that extend beyond the edge of the document, to facilitate easy identification and review of tabbed documents.
Brief Covers: THE CASE CAPTION(S) ON BRIEF COVERS MUST BE EXACTLY THE SAME AS THE CASE CAPTION(S) ON THE ENCLOSED TITLE CAPTION

Case: 20-50407 Document: 00515423033 Page: 2 Date Filed: 05/20/2020

SHEET(S). YOU WILL HAVE TO CORRECT ANY MODIFICATIONS YOU MAKE TO THE CAPTION(S) BEFORE WE SUBMIT YOUR BRIEF TO THE COURT.

Policy on Extensions: The court grants extensions sparingly and under the criteria of 5TH CIR. R. 31.4. If you request an extension, you must contact opposing counsel and tell us if the extension is opposed or not. 5TH CIR. R. 31.4 and the Internal Operating Procedures following rules 27 and 31 state that except in the most extraordinary circumstances, the maximum extension for filing briefs is 30 days in criminal cases and 40 days in civil cases.

Reply Brief: We do not send cases to the court until all briefs are filed, except in criminal appeals. Reply briefs must be filed within the 21 day period of FED. R. APP. P. 31(a)(1). See 5TH CIR. R. 31.1 to determine if you have to file electronic copies of the brief, and the format.

Dismissal of Appeals: The clerk may dismiss appeals without notice if you do not file a brief on time, or otherwise fail to comply with the rules.

Appearance Form: If you have not electronically filed a "Form for Appearance of Counsel," you must do so within 14 days of this date. You must name each party you represent, See FED. R. APP. P. and 5TH CIR. R. 12. The form is available from the Fifth Circuit's website, www.ca5.uscourts.gov.

ATTENTION ATTORNEYS: Direct access to the electronic record on

appeal (EROA) for pending appeals will be enabled by the U S

District Court on a per case basis. Counsel can expect to receive

notice once access to the EROA is available. Counsel must be

approved for electronic filing and must be listed in the case as

attorney of record before access will be authorized. Instructions

for accessing and downloading the EROA can be found on our website

at

http://www.ca5.uscourts.gov/docs/default-

source/forms/instructions-for-electronic-record-download-

feature-of-cm. Additionally, a link to the instructions will be

included in the notice you receive from the district court.

Sealed documents, except for the presentence investigation report in criminal appeals, will not be included in the EROA. Access to sealed documents will continue to be provided by the district court only upon the filing and granting of a motion to view same in this court.

The clerk's office offers brief templates and the ability to check the brief for potential deficiencies prior to docketing to assist in the preparation of the brief. To access these options, log in to CM/ECF and from the Utilities menu, select 'Brief Template' (Counsel Only) or 'PDF Check Document'.

Guidance Regarding Citations in Pleadings.

5TH CIR. R. 28.2.2 grants the Clerk the authority to create a standard format for citation to the electronic record on appeal. You must use the proper citation format when citing to the electronic record on appeal.

Case: 20-50407 Document: 00515423033 Page: 3 Date Filed: 05/20/2020
A. In single record cases, use the short citation form, "ROA" followed by a period, followed by the page number. For example, "ROA.123."
B. For multiple record cases, cite "ROA" followed by a period, followed by the Fifth Circuit appellate case number of the record referenced, followed by a period, followed by the page of the record. For example, "ROA.13-12345.123.".
C. Please note each individual citation must end using a termination of a period (.) or semicolon (;).
Pro se litigants may request the record from the district court to prepare their brief. Those proceeding in forma pauperis may receive the record without payment of shipping costs. If you wish to receive exhibits, you must specifically request them.
Once you obtain the record, you should check it within 14 days of receipt for any missing or incomplete items. If you need to request a supplemental record or order transcripts, do so promptly. The court will not grant extensions of time to file your brief because you did not timely check the record.
Reminder as to Sealing Documents on Appeal: Our court has a strong presumption of public access to our court's records, and the court scrutinizes any request by a party to seal pleadings, record excerpts, or other documents on our court docket. Counsel moving to seal matters must explain in particularity the necessity for sealing in our court. Counsel do not satisfy this burden by simply stating that the originating court sealed the matter, as the circumstances that justified sealing in the originating court may have changed or may not apply in an appellate proceeding. It is the obligation of counsel to justify a request to file under seal, just as it is their obligation to notify the court whenever sealing is no longer necessary. An unopposed motion to seal does not obviate a counsel's obligation to justify the motion to seal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _/s/Melissa Courseault______ Melissa Courseault, Deputy Clerk 504-310-7701
Enclosure(s)
cc w/encl: Mr. Kembel Scott Brazil

Case: 20-50407 Document: 00515423033 Page: 4 Date Filed: 05/20/2020
Case No. 20-50407
TEXAS DEMOCRATIC PARTY; GILBERTO HINOJOSA, Chair of the Texas Democratic Party; JOSEPH DANIEL CASCINO; SHANDA MARIE SANSING; BRENDA LI GARCIA,
Plaintiffs - Appellees v. GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS; RUTH HUGHS, Texas Secretary of State; KEN PAXTON, Texas Attorney General,
Defendants - Appellants

EXHIBIT 3

Pettit, Lanora

From: Sent: To: Subject:

cmecf_caseprocessing@ca5.uscourts.gov Friday, May 22, 2020 1:28 PM Abrams, Michael 20-50407 Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al "Non Dispositive Court Order granting to file amicus brief"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
United States Court of Appeals for the Fifth Circuit
Notice of Docket Activity
The following transaction was entered on 05/22/2020 at 1:25:47 PM CDT and filed on 05/22/2020 Case Name: Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al Case Number: 20‐50407 Document(s): https://urldefense.proofpoint.com/v2/url?u=https‐3A__ecf.ca5.uscourts.gov_docs1_00505426204‐3Fuid‐ 3D1ceef08f497b299e&d=DwIFaQ&c=Z_mC1sqOcfBCM1ZptXokOj7_ss37GsaAMzCZyvOxKN4&r=MxYvaQcKXsxiOXeNNhlB RoYG2jIIMEOTe7v8RPrMov4&m=‐ swN0u_BfeEwVfrrteT149wvO9aN5q7u8AxjqJ_33Ro&s=tyrG3LntkTGxDmjYW3sq0Wo9Eq‐X8OBX20hX6sHyyQA&e=
Docket Text: COURT ORDER ‐ IT IS ORDERED that the motion of Dana Debeauvoir, the Travis County Clerk, for leave to file a brief as amicus curiae in support of appellees' opposition to the appellant's motion for stay pending appeal is GRANTED. IT IS FURTHER ORDERED that the motion of Harris County for leave to file a brief as amicus curiae in support of the appellees' opposition to the appellants’ motion for stay pending appeal is GRANTED. Except for new developments or extenuating circumstances, any further submissions by the parties or potential amici curiae, regarding the motion for stay pending appeal, are to be filed by May 27. [9318431‐2], [9318358‐2] [20‐50407] (MBC)
Notice will be electronically mailed to:
Mr. Michael Abrams: michael.abrams@oag.texas.gov, katrina.shanks@oag.texas.gov, laura.redd@oag.texas.gov Mr. Kembel Scott Brazil: scott@brazilanddunn.com, duncha@sbcglobal.net, cyndiwoodfin@sbcglobal.net, Karen_Nix@sbcglobal.net Ms. Leslie Wood Dippel: leslie.dippel@traviscountytx.gov, amy.pollock@traviscountytx.gov, amy.murray@traviscountytx.gov Mr. Chad Wilson Dunn: chad@brazilanddunn.com, scott@brazilanddunn.com, carol@brazilanddunn.com, gwen@brazilanddunn.com, chad@brazilanddunn.com Mr. Kyle Douglas Hawkins: kyle.hawkins@oag.texas.gov, sabrina.wycoff@oag.texas.gov, maria.williamson@oag.texas.gov Ms. Susan Lea Hays: hayslaw@me.com, hayslaw@sbcglobal.net Ms. Lanora Christine Pettit: Lanora.pettit@oag.texas.gov, cecilia.hertel@oag.texas.gov, sabrina.wycoff@oag.texas.gov Ms. Mahogane Denea Reed: mahogane_reed@ca5.uscourts.gov

The following document(s) are associated with this transaction: Document Description: Non Dispositive Court Order Original Filename: 20‐50407_Electronic Order #01.pdf Electronic Document Stamp:
1

[STAMP acecfStamp_ID=1105048708 [Date=05/22/2020] [FileNumber=9318918‐0] [8cc4d50959acb05d7775da396b4c6c6603d0972ba750d14d8c801894f9c26c6ab28c76dd69972e22b3ac46ac511a40bd2d e43f9b3bc2cc876ff0ecc00d02511f]] Document Description: MOT‐2 Letter Original Filename: /opt/ACECF/live/forms/MelissaCourseault_2050407_9318918_MotionNotice‐MOT‐2_381.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105048708 [Date=05/22/2020] [FileNumber=9318918‐1] [252b29fdf1d7f87bc86127bd3f70752f7943b6f713e477b0356f7e7c8f88a8f493acf17da54712d663061e5d289f0531903d 99e37d070a3eb2dedf9325d447f4]] Recipients:
Mr. Michael Abrams Mr. Kembel Scott Brazil Ms. Leslie Wood Dippel Mr. Chad Wilson Dunn Mr. Kyle Douglas Hawkins Ms. Susan Lea Hays Ms. Lanora Christine Pettit Ms. Mahogane Denea Reed
2

EXHIBIT 4

No. D-1-GN-20-001610

TEXAS DEMOCRATIC PARTY AND GILBERTO

§

HINOJOSA, IN HIS CAPACITY AS CHAIRMAN OF §

THE TEXAS DEMOCRATIC PARTY, JOSEPH

§

DANIEL CASCINO and SHANDA MARIE

§

SANSING,

§

Plaintiffs,

§

§

and

§

§

ZACHARY PRICE, LEAGUE OF WOMEN VOTERS §

OF TEXAS, LEAGUE OF WOMEN VOTERS OF

§

AUSTIN-AREA, MOVE TEXAS ACTION FUND, §

WORKERS DEFENSE ACTION FUND,

§

Plaintiff-Intervenors

§

§

v.

§

§

DANA DEBEAUVOIR, IN HER CAPACITY AS

§

TRAVIS COUNTY CLERK,

§

Defendant.

§

§

STATE OF TEXAS,

§

Intervenor.

§

4/17/2020 4:09 PM Velva L. Price District Clerk Travis County
D-1-GN-20-001610 Selina Hamilton
IN THE DISTRICT COURT
TRAVIS COUNTY, TEXAS
201st JUDICIAL DISTRICT

NOTICE OF INTERLOCUTORY APPEAL Pursuant to Texas Rules of Appellate Procedure 25.1(a) and 26.1(b), Intervenor

the State of Texas, by and through its Attorney General, gives notice of appeal from

the Order signed by Judge Tim Sulak on April 17, 2020 in Cause No. D-1GN-20-

001610 and styled “Texas Democratic Party, et al. v. Dana Debeauvoir, in her Capacity

as Travis County Clerk.” Said Order denied the Intervenor’s Plea to the Jurisdiction

and granted Plaintiffs’ and Plaintiff-Intervenors’ application for a temporary

injunction. The Order enjoins Travis County and its agents from enforcing Texas

Election Code § 82.002 pending final judgment in this action. The Order similarly



purports to enjoin the State and State actors from enforcing Texas Election Code § 82.002 in an unspecified geographic area.
Intervenor is entitled to an interlocutory appeal pursuant to Civil Practice and Remedies Code section 51.014(a)(4) and (8), which allows for an immediate appeal from an order that grants a temporary injunction or that denies a plea to the jurisdiction. Intervenor appeals to the Third Court of Appeals. This is an accelerated appeal as provided by Texas Rule of Appellate Procedure 28.1. This is not a parental termination or child protection case, as defined in Rule 28.4.
Pursuant to Texas Civil Practice and Remedies Code § 51.014(b), all further proceedings in this court are stayed pending resolution of Intervenor’s appeal. Upon filing of this instrument, the April 17, 2020 Temporary Injunction is superseded pursuant to Texas Civil Practice and Remedies Code section 6.001(b) and Texas Rule of Appellate Procedure 29.1(b).
Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division /s/Anne Marie Mackin ANNE MARIE MACKIN Texas Bar No. 24078898 MICHAEL R. ABRAMS


Texas Bar No. 24087072 Assistant Attorneys General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2798 | FAX: (512) 320-0667 anna.mackin@oag.texas.gov michael.abrams@oag.texas.gov ATTORNEYS FOR INTERVENOR STATE OF TEXAS 


CERTIFICATE OF SERVICE
I certify that on April 17, 2020, the foregoing instrument was served electronically through the electronic-filing manager in compliance with TRCP 21a to:
Chad W. Dunn General Counsel State Bar No. 24036507 Brazil & Dunn, LLP 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 (512) 717-9822 Tel. (512) 515-9355 Fax chad@brazillanddunn.com
K. Scott Brazil State Bar. No. 02934050 Brazil & Dunn, LLP 13231 Champion Forest Drive, Suite 406 Houston, Texas 77069 (281) 580-6310 Tel. (281) 580-6362 Fax scott@brazilanddunn.com
Dicky Grigg State Bar No. 08487500 Law Office of Dicky Gregg, P.C. 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 (512)474-6061 Tel. (512)582-8560 dicky@grigg-law.com
Martin Golando The Law Office of Martin Golando, PLLC State Bar No. 24059153 N. Saint Mary’s, Suite 700 San Antonio, Texas 78205 (210) 892-8543 martin.golando@gmail.com
ATTORNEYS FOR PLAINTIFFS
Joaquin Gonzalez


Texas Bar No. 24109935 Joaquin@texascivilrightsproject.org Mimi Marziani Texas Bar No. 24091906 mimi@texascivilrightsproject.org Rebecca Harrison Stevens Texas Bar No. 24065381 Beth@texascivilrightsproject.org TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741 (512) 474-5073 Telephone (512) 474-0726 Facsimile
Edgar Saldivar Texas Bar No. 24038188 esaldivar@aclutx.org Thomas Buser-Clancy Texas Bar No. 24078344 Tbuser-clancy@aclutx.org Andre Segura Texas Bar No. 24107112 asegura@aclutx.org ACLU FOUNDATION OF TEXAS, INC P.O. Box 8306 Houston, Texas 77288 (713) 325-7011 Telephone (713) 942-8966 Fax
Sophia Lin Lakin New York Bar No. 5182076 slakin@aclu.org Dale E. Ho New York Bar No. 4445326 dho@aclu.org AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 (212) 519-7836 Telephone (212) 549-2654 Fax
ATTORNEYS FOR INTERVENORPLAINTIFFS


Sherine Thomas Sherine.Thomas@traviscountytx.gov Leslie Dippel Leslie.Dippel@traviscountytx.gov ATTORNEYS FOR DANA DEBAEUVOIR IN HER CAPACITY AS TRAVIS COUNTY CLERK
/s/Anne Marie Mackin ANNE MARIE MACKIN Assistant Attorney General


EXHIBIT 5



THE SUPREME COURT OF TEXAS

 Orders Pronounced May 15, 2020
ORDERS ON CASE GRANTED

THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS SET FOR ORAL ARGUMENT:
 
20-0394 IN RE STATE OF TEXAS
[Note: This case has been set for oral argument at 2:30 p.m., May 20, 2020.]
A STAY IS ISSUED IN THE FOLLOWING PETITION FOR WRIT OF MANDAMUS:
20-0401 IN RE STATE OF TEXAS; from Travis County; 14th Court of Appeals District; (14-20-00358-CV, ___ SW3d ___, 05-14-20) relator’s emergency motion for temporary relief granted stay order issued
[Note: The petition for writ of mandamus remains pending before this Court.]

EXHIBIT 6

From: To: Subject:
Date:

TXW_USDC_Notice@txwd.uscourts.gov cmecf_notices@txwd.uscourts.gov Activity in Case 5:20-cv-00438-FB Texas Democratic Party et al v. Abbott, Governor of Texas et al Order on Motion for Preliminary Injunction Tuesday, May 19, 2020 4:35:25 PM

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court [LIVE] Western District of Texas

Notice of Electronic Filing

The following transaction was entered on 5/19/2020 at 4:34 PM CDT and filed on 5/19/2020

Case Name:

Texas Democratic Party et al v. Abbott, Governor of Texas et al

Case Number: 5:20-cv-00438-FB

Filer:

Document Number: 90

Docket Text: ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [10] Motion for Preliminary Injunction. IT IS FURTHER ORDERED that this Order shall remain in full force and effect until a Judgment is issued in this matter or until such time as the pandemic circumstances giving rise to this Order subside. IT IS FINALLY ORDERED that defendants may petition this Court, upon giving notice and opportunity to be heard to plaintiffs, that the Order should be dissolved for any reason, including that the state courts have resolved issues of a matter of state law that render this injunction unnecessary or because the pandemic circumstances giving rise to it have subsided. Signed by Judge Fred Biery. (wg)

5:20-cv-00438-FB Notice has been electronically mailed to:
Andrew M. Williams drew.williams@traviscountytx.gov, destany.brown@traviscouuntytx.gov, hannah.lowrance@traviscountytx.gov, sara.boltin@traviscountytx.gov
Andy Taylor ataylor@andytaylorlaw.com
Anne Marie Mackin anna.mackin@oag.texas.gov, ana.aranda@oag.texas.gov

Chad W. Dunn chad@brazilanddunn.com, gwen@brazilanddunn.com, scott@brazilanddunn.com
Cory A. Scanlon cory.scanlon@oag.texas.gov, caroline.taylor@oag.texas.gov, laura.kiick@oag.texas.gov
Cynthia W. Veidt cynthia.veidt@traviscountytx.gov, hannah.lowrance@traviscountytx.gov, sara.boltin@traviscountytx.gov
Dallin B. Holt dholt@hvjt.law
Jose Garza jgarza@trla.org, garzpalm@aol.com
K. Scott Brazil scott@brazilanddunn.com, carol@brazilanddunn.com, chad@brazilanddunn.com
Leslie W. Dippel leslie.dippel@traviscountytx.gov, amy.murray@traviscountytx.gov, amy.pollock@traviscountytx.gov
Luis Roberto Vera , Jr lrvlaw@sbcglobal.net, lrvlawsa@yahoo.com
Martin Anthony Golando martin.golando@gmail.com
Michael Abrams michael.abrams@oag.texas.gov, katrina.shanks@oag.texas.gov, Laura.Redd@oag.texas.gov
Richard Alan Grigg dicky@grigg-law.com, mel@grigg-law.com
Robert D. Green robert.green@bexar.org, MaryAnn.Ortegon@bexar.org
Robert Leslie Meyerhoff rmeyerhoff@txdemocrats.org
Sharon Talley sharon.talley@traviscountytx.gov, julia.montemayor@traviscountytx.gov, tim.labadie@traviscountytx.gov
Sherine Elizabeth Thomas sherine.thomas@traviscountytx.gov, amy.murray@traviscountytx.gov, gina.hernandez@traviscountytx.gov
Susan L. Hays hayslaw@me.com
5:20-cv-00438-FB Notice has been delivered by other means to:
The following document(s) are associated with this transaction:
Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=5/19/2020] [FileNumber=233936590] [0bf4fc4e41f6d054f5fd4848cc1aa1715a393c2d2f021863335b531221bdeb77c3 d56b57f941e31a5293c56d43a9bd9a963c008f842e1c03f0737649fb23c7b0]]

EXHIBIT 7

From: To: Subject: Date:

cmecf_caseprocessing@ca5.uscourts.gov Abrams, Michael 20-50407 Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al "Motion Filed on Behalf of Party stay pending appeal" Wednesday, May 20, 2020 10:57:25 AM

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
United States Court of Appeals for the Fifth Circuit
Notice of Docket Activity
The following transaction was entered on 05/20/2020 at 10:56:47 AM CDT and filed on 05/20/2020 Case Name: Texas Democratic Party, et al v. Greg Abbott, Governor of TX, et al Case Number: 20-50407 Document(s): https://urldefense.proofpoint.com/v2/url?u=https-3A__ecf.ca5.uscourts.gov_docs1_00505422958-3Fuid3D679b7510f4223e8a&d=DwICaQ&c=Z_mC1sqOcfBCM1ZptXokOj7_ss37GsaAMzCZyvOxKN4&r=MxYvaQcKXsxiOXeNNhlBRoYG2jIIMEOTe7v8RPrMov4&m=mznXzbBt1buiZiIlXRH325GOuAGggmJO1UxTXwIHgdw&s=fMgYZcLAOX1_i5kpaMLDeMjG3ii3ScQgANC5ViA_xI&e=
Docket Text: MOTION filed by Appellants Greg Abbott, Governor of the State of Texas, Ms. Ruth Hughs and Mr. Ken Paxton for stay pending appeal [9317036-2] Ruling is requested by: 05/20/2020. Date of service: 05/20/2020 via email - Attorney for Appellants: Abrams, Hawkins; Attorney for Appellee: Brazil [20-50407] (Kyle Douglas Hawkins )
Notice will be electronically mailed to:
Mr. Kembel Scott Brazil: scott@brazilanddunn.com, duncha@sbcglobal.net, cyndiwoodfin@sbcglobal.net, Karen_Nix@sbcglobal.net Mr. Kyle Douglas Hawkins: kyle.hawkins@oag.texas.gov, sabrina.wycoff@oag.texas.gov, maria.williamson@oag.texas.gov Mr. Michael Abrams: michael.abrams@oag.texas.gov, katrina.shanks@oag.texas.gov, laura.redd@oag.texas.gov
The following document(s) are associated with this transaction: Document Description: Motion Filed on Behalf of Party Original Filename: Fifth Circuit Stay FINAL.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105048708 [Date=05/20/2020] [FileNumber=9317036-0] [7729b40dc10f8538a4ee2969bae35ced0a58fec0b1acb0dc99786ede8c5bfaaf363e5923d6b6e1b9ceecf0bbd3d48124b6e7225f083a0a35d29df282ba2b3c72]] Document Description: Describe Attachment Original Filename: Fifth Circuit Stay Exhibits.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105048708 [Date=05/20/2020] [FileNumber=9317036-1] [4033cd7a22071b34382a95f849e80f19efa63cb92b6e764cd51f8e7376e2eca70e41ed59ec9756c87e51e87ad6a8cbeb14de3d737a75061e1db3a2817b517812]]