Case 5:20-cv-00577-OLG Document 1 Filed 05/11/20 Page 1 of 43

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

LINDA JANN LEWIS, MADISON LEE, ELLEN SWEETS, BENNY ALEXANDER, GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, and TEXAS ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs,
vs.
RUTH HUGHS, in her official capacity as Texas Secretary of State,
Defendant.

Civil Action No. 5:20-cv-00577
Related to Gloria et al. v. Hughs et al., No. 5:20-cv-00527

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs LINDA JANN LEWIS, MADISON LEE, LINDA SWEETS, BENNY

ALEXANDER, GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, and

TEXAS ALLIANCE FOR RETIRED AMERICANS (together, “Plaintiffs”) file this Complaint

for Declaratory and Injunctive Relief against Defendant RUTH HUGHS, in her official capacity

as Texas Secretary of State, and allege as follows:

NATURE OF THE CASE

1.

“There is more to the right to vote than the right to mark a piece of paper and drop

it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have

the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and quotation omitted). In light of the present, unprecedented global health crisis, at least four provisions of the

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Texas Election Code will severely burden Texans’ right to exercise their right to vote in the coming

November general election (the “November Election”). Should these provisions remain in effect

come November, many Texans will suffer the loss of their right to vote, “a right they will never

be able to recover,” Stringer v. Whitley, 942 F.3d 715, 726 (5th Cir. 2019) (Ho, J., concurring),

because they will either be effectively barred from casting their ballots or their ballots will not be

counted.

2.

The severe and unjustifiable risk of disenfranchisement of hundreds of thousands

of Texans arises in the context of the current global public health crisis. A novel coronavirus,

SARS-CoV-2, is spreading throughout the country, infecting hundreds of thousands with the

disease known as COVID-19. In Texas alone, at least 35,390 cases of COVID-19 have been

reported, and that number is only growing. Experts predict the pandemic will last 18 to 24 months,

with a resurgence in the fall—just in time for the November Election—that the Director of the

Centers for Disease Control and Prevention warns will be “be even more difficult than the one we

just went through.” Zack Budryk, CDC director warns second wave of coronavirus might be ‘more

difficult’, The Hill (Apr. 21, 2020), https://thehill.com/policy/healthcare/493973-cdc-director-

warns-second-wave-of-coronavirus-might-be-more-difficult.

3.

Texas has not yet reached its “peak” of infections. Last week alone, the state

reported more than 7,000 new cases and 221 deaths—an increase of 24 percent and 33 percent

over the prior week, respectively—and it saw the highest single day jump in coronavirus cases

since the outbreak began. As Governor Abbott begins taking steps to “reopen” Texas in the coming

weeks, experts have predicted that the rate of infections will continue to increase, likely at a

quickening pace, as mitigation efforts previously in place are lifted. All of this is to say that the

most vulnerable Texans, including the elderly and those with pre-existing health conditions—

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groups that account for as much of one third to one half of Texas’s population—will still need to

be practicing self-isolating and social distancing come November. Many Americans who are not

among the most vulnerable will likely also continue to do the same to avoid becoming the

unwitting spreaders of this highly contagious and often fatal disease.

4.

Recognizing the serious health risks posed by holding elections in Texas in the

manner that they have historically been held—i.e., with very limited mail-in voting, such that most

voters have had to cast their ballots in person at what have often been crowded polling places with

long lines—Texas’s Director of Elections ordered counties to postpone any local elections on April

2, to avoid subjecting voters to the risk of contracting or spreading COVID-19. Consistent with

the experience of jurisdictions that have held elections since the pandemic began., county election

administrators in Texas anticipate a significant increase in eligible voters who—faced with the

unconscionable choice between maintaining their safety and the safety of those around them, and

exercising their fundamental right to vote—will choose to vote by mail. This is consistent with the

results of a recent Pew Research study, which found that 66% of Americans are uncomfortable

going to a polling place in light of the COVID-19, as well as with CDC guidance: recognizing the

difficulties in and risks posed by conducting elections where the majority of voters cast their ballots

in person during the COVID-19 crisis, the CDC has recommended that jurisdictions encourage

mail voting and reduce methods of voting that lead to direct contact between or among voters or

poll workers. Other federal, state, and local officials have increasingly come to the same

realization. Congress, for example, has authorized $400 million to help states transition to voting-

by-mail.

5.

It remains to be seen whether Texas will agree—or will ultimately be required by

judicial order—to protect the health of the citizenry and their ability to exercise their fundamental

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rights by allowing broader absentee voting than in years past. As of this filing, several cases remain

pending in the state and federal courts seeking to ensure that voters have safe access to the ballot

in coming Texas elections. At the same time, the State’s Attorney General has repeatedly publicly

threatened voters with criminal prosecution, should they apply for a mail-in ballot because of fears

about contracting or spreading COVID-19. But beyond the constitutional and moral infirmities

with Texas’s present stance on who may access mail-in voting, multiple provisions of the law that

governs that process (collectively, “Vote By Mail Restrictions”) independently and collectively

pose direct and severe burdens on the right to vote, either by unduly burdening the process, or by

unjustifiably raising the risk that substantial numbers of valid ballots of entirely lawful, eligible

voters will be rejected and not counted by the State in the coming November Election.

6.

This lawsuit challenges the constitutionality of those provisions in the context of

the current crisis. They include: (1) the requirement that voters pay for the postage to return their

early voting ballots by mail (“Postage Tax”), Tex. Elec. Code § 86.002; (2) the requirement that

returned ballots be postmarked no later than 7:00 p.m. on election day and received by the county

at the address designated on the ballot carrier envelope no later than 5:00 p.m. on the day after the

election to be counted (“Ballot Receipt Deadline”), id. § 86.007; (3) the requirement that voters

must submit two handwriting samples that “match”—a standard determined by election officials—

in order to have their early voting ballots counted (“Signature Match Requirement”), id. § 87.027;

and (4) the criminalization of a person assisting a voter in returning a marked mail ballot (“Voter

Assistance Ban”), id. § 86.006.

7.

In order to ensure that Texas voters⸺including the individual Plaintiffs, as well

as the members and constituents of the Organizational Plaintiffs⸺will not be unconstitutionally

denied their right to vote or have that right unduly burdened as a result of the unconstitutional

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application of the Vote By Mail Restrictions in the midst of this unprecedented crisis, Plaintiffs

seek a preliminary injunction from this Court enjoining: (1) the Postage Tax, to ensure that lawful,

eligible voters are not disenfranchised as a result of their inability to procure postage to return their

mail-in ballots; (2) the Ballot Receipt Deadline, to ensure that lawful, eligible voters are not

disenfranchised provided that their ballots are put in the mail on or before election day and received

before the canvass of the election; (3) the Signature Match Requirement, to ensure that lawful,

eligible voters are not disenfranchised as a result of inaccurate signature “matching” by persons

unqualified to accurately evaluate the authenticity of signatures and with no opportunity to cure a

mis-flagged mismatch to save their ballot from being rejected; and (4) the Voter Assistance Ban,

to ensure that voters in need of assistance in delivering their marked vote-by-mail ballots receive that assistance.1

JURISDICTION AND VENUE

8.

Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

deprivation, under color of state law, of rights secured by the United States Constitution.

9.

This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and

laws of the United States.

10. This Court has personal jurisdiction over the Defendant, the Texas Secretary of

State, who is sued in her official capacity only.

1 The term “postmark” is used to reference any type of marking applied by the USPS including bar codes or other tracking marks indicating that a ballot was mailed on or before election day. If there is no postmark on a particular ballot, but it arrives within the relevant time frame, it should be presumed to have been mailed on or before Election Day, unless there is clear and convincing evidence to the contrary.
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11. Venue is proper in the U.S. District Court in the Western District of Texas pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred there.
12. This Court has the authority to enter a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES 13. Plaintiff LINDA JANN LEWIS is a 73-year-old African-American citizen who resides and is registered to vote in Waco, Texas. Ms. Lewis is a member of the Texas Conference of the NAACP. Although Ms. Lewis has been able to cast a mail ballot because of her age for nearly a decade, she generally votes in person due to her concerns that voting by mail raises the risk that her ballot will not be counted. Ms. Lewis also suffers from a disability called kerataconus that affects her vision. To improve the impairments caused by kerataconus, Ms. Lewis has had two cornea surgeries, four cataract surgeries, and most recently, a tissue transplant in her right eye. Despite these procedures, Ms. Lewis still suffers from impaired vision, and the changes in her vision have affected her signature over time. Although Ms. Lewis would prefer to cast her ballot in person on election day, she recognizes that her age and disability place her at high risk for severe complications if she is infected with COVID-19 and thus, she plans to vote by mail for her safety and the safety of others in her community while the pandemic continues. Ms. Lewis is concerned that her ballot may be rejected because of the Signature Match Requirement and potential variations in her signature caused by her disability. In addition, Ms. Lewis is concerned about her ability to obtain the postage necessary to mail her ballot. As a result of her disability, it is not safe for Ms. Lewis to drive. Ms. Lewis understands that the U.S. Postal Service (“USPS”) no longer processes mail in Waco, and thus any mail she sends must first be processed in Austin or Fort Worth before it is delivered to its final destination. Ms. Lewis has concerns that her ballot may be
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delayed, both in being sent to her and in being returned to the county board of elections, and that she may need to personally deliver her ballot to ensure that it arrives on time.
14. Plaintiff MADISON LEE is a 23-year-old citizen and resident of and registered voter in Austin, Texas. Ms. Lee was diagnosed as a young child with an aggressive form of Juvenile Rheumatoid Arthritis, an autoimmune disease that affects her hands and other parts of her body, causes her daily pain, and has resulted in a decrease of her physical abilities. As a young adult, Ms. Lee lost her ability to write without pain or difficulty. Ms. Lee has generally voted in person in previous elections, but she recognizes that her autoimmune disease places her at high risk for severe complications if she is infected with COVID-19 and thus, she plans to cast a mail ballot for her safety and the safety of others in her community while the pandemic continues. Ms. Lee is concerned that her ballot may be rejected because of the Signature Match Requirement and potential variations in her signature caused by her disability. Ms. Lee also has concerns that her ballot may be delayed, both in being sent to her and in being returned to the county board of elections, and that she may need to personally deliver her ballot to ensure that it arrives on time.
15. Plaintiff ELLEN SWEETS is a 79-year-old African-American citizen and resident of and registered voter in Austin, Texas. Although Ms. Sweets has been eligible to vote by mail because of her age for over a decade, she generally votes in person due to her concerns that voting by mail raises the risk that her ballot will not be counted. Ms. Sweets also suffers from severe asthma and hip impairments that have limited her mobility. She has been instructed by her doctor not to leave her place of residence during the COVID-19 pandemic, and in accordance with her doctor’s instruction, has not left her apartment since early February. She intends to shelter in place for the duration of the pandemic. Ms. Sweets recognizes that her severe asthma places her at high risk for severe complications if she is infected with COVID-19 and thus, she plans to cast a
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mail ballot for her safety and the safety of others in her community while the pandemic continues. Ms. Sweets has concerns that her ballot may be delayed, both in being sent to her and in being returned to the county board of elections, and that she may need to personally deliver her ballot to ensure that it arrives on time. Ms. Sweets does not have family in Austin and lives alone. Ms. Sweets would like to ask a friend or acquaintance to pick up her marked, sealed mail-in ballot and deliver it to the county for her; however, she knows that the Voter Assistance Ban criminalizes this and she is unwilling to put others at risk of prosecution. Ms. Sweets is also concerned about the risk that her ballot may not be counted due to the Signature Match Requirement and potential variations in her signature.
16. Plaintiff BENNY (“BEN”) ALEXANDER is a 66-year-old African-American citizen and resident of and registered voter in Bexar County located in San Antonio, Texas. Reverend Alexander is the pastor of New Way Bible Fellowship Church in San Antonio. Although Reverend Alexander is able to vote by mail because of his age, he has generally voted in person due to his concern that voting by mail raises the risk that his ballot will not be counted. In addition to being eligible to vote by mail because of his age, Reverend Alexander suffers from congestive heart failure, diabetes, and high blood pressure. Reverend Alexander survived a massive heart attack in the past, and he has both a defibrillator and pacemaker to reduce his risk of suffering a second heart attack in the future. Reverend Alexander recognizes that his age and these underlying health conditions place him at a high risk for severe complications if he is infected with COVID19 and thus he plans to cast a mail ballot for his safety while the pandemic continues. Reverend Alexander is concerned that his ballot may be rejected because of the Signature Match Requirement. Reverend Alexander also has concerns that his ballot may be delayed, both in being
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sent to him and in being returned to the county board of elections, and that he may need to personally deliver his ballot to ensure that it arrives on time.
17. Plaintiff GEORGE (“EDDIE”) MORGAN is a 63-year-old citizen and resident of and registered voter in Dallas, Texas. Mr. Morgan is a member of the Texas Alliance for Retired Americans. For as long as he can remember, he has had trouble with respiratory illness; starting when he was a young child and through adulthood, he was regularly hospitalized for pneumonia and suffered from chronic bronchitis. In 1982, Mr. Morgan was diagnosed with Mounier-Kuhn syndrome, a genetic lung disorder resulting in frequent respiratory tract infections and low lung function. Mr. Morgan was a geriatric nurse for thirty years, but when he contracted pneumonia from one of his patients, his primary care physician told him he was too ill to work. His condition requires him to do antibiotic breathing treatments three times a day, and he also uses inhalers throughout the day. Because his Mounier-Kuhn syndrome prevents him from working, he receives Social Security Disability Insurance, which just barely covers his monthly essentials (such as utilities, telephone service, and doctors’ copays) and is often not sufficient. Mr. Morgan also has debt from prior hospitalizations that he cannot pay down. He receives $19 dollars a week in food stamps, which is not enough to cover his meals, so he also receives food from food banks. And, after more than a year on the waitlist, Mr. Morgan was recently notified that he would receive Meals on Wheels, though he did not receive his first scheduled meal deliveries likely of an inability of volunteers to do deliveries during the pandemic.
18. Because of his Mounier-Kuhn syndrome, Mr. Morgan already has low lung function; he is therefore likely to develop serious respiratory complications if he contracts COVID19. In addition, because his condition leaves him immunocompromised, his body struggles to fight even common illnesses like pneumonia, let alone the disease caused by the novel coronavirus.
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Thus, since the emergence of this global health crisis, Mr. Morgan has been in strict isolation by doctor’s orders, and he intends to be isolated until his doctors tell him there is no risk of infection from COVID-19. Beyond his monthly trip to the hospital to receive antibodies for pneumonia (as his condition prevents his body from developing those naturally), Mr. Morgan has stayed in his apartment alone since March 12. His sister brings him groceries once a week, and he hopes to receive food from Meals on Wheels soon. In light of his condition, his senior housing community has arranged for him to take the trash out and do his laundry late in the evening so that he can avoid his neighbors. Though Mr. Morgan has, in the past, been uncertain about whether his condition qualifies him to vote by mail, he understands that he is now qualified to do so because, with the risk of contracting COVID-19, his condition “prevents [him] from appearing at the polling place on election day without a likelihood . . . of injuring [his] health.” He has, therefore, applied to vote by mail for the November General Election, and recently spoke with the Dallas County election administrator, who told him that his application would be accepted.
19. As the precinct chair for Precinct 1071, Mr. Morgan is passionate about the election process and committed to participating in it. He fears that, despite being eligible to vote by mail, the Vote By Mail Restrictions will make it hard from him to guarantee that the county receives and counts his marked mail-in ballot. He is concerned that he will not have a stamp available to return his marked ballot, as is required by the Postage Tax. Mr. Morgan cannot make a trip to the post office to buy stamps for fear of contracting COVID-19, and he does not currently have access to a reliable computer, so he would not be able to order postage online. Even if he was able to do so, he understands that he would have to purchase an entire book of stamps for $11, which he cannot afford to do. To avoid these issues in November, Mr. Morgan would like to ask a friend or acquaintance to pick up his marked, sealed mail-in ballot and deliver it to the county
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for him; however, he knows that the Voter Assistance Ban criminalizes this and he is unwilling to put others at risk of prosecution. Mr. Morgan is also concerned about the Ballot Collection Deadline. He knows that the USPS is experiencing financial issues and severe delays and believes it will be overburdened by an influx of mail near the election. He therefore believes that even if he mails his ballot with time to spare, there is a significant chance his ballot will arrive after the deadline and therefore not be counted. Mr. Morgan also fears that, assuming he can acquire a stamp and his mail-in ballot arrives in time, it will be rejected. Because his physical condition varies dayby-day, there are some days when he has no problem writing and somedays when he struggles to write. He is concerned that fluctuations in his penmanship between his vote by mail application and his ballot will result in his mail-in ballot being rejected and he will not have an opportunity to cure because of the Signature Match Requirement.
20. Plaintiff VOTO LATINO brings this action on its own and on behalf of its constituents and supporters. Voto Latino is a Section 501(c)(4) nonprofit, social welfare organization that engages, educates, and empowers Latinx communities across the United States, working to ensure that Latinxs are enfranchised and included in the democratic process. In furtherance of its mission, Voto Latino expends significant resources to register and mobilize thousands of Latinx voters each election cycle, including the nearly 5.6 million eligible Latinx voters in Texas. Voto Latino considers eligible Latinx voters in Texas to be the core of its constituency. Voto Latino has seven local chapters of volunteers in Texas, including a chapter in San Antonio. Since 2010, Voto Latino has been mobilizing Latinx voters in Texas through statewide voter registration initiatives as well as peer-to-peer and digital voter education and getout-the-vote campaigns. In 2018, Voto Latino directly registered 15% of all new registered voters in Texas, and 77% of those voters turned out to vote.
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21. As part of Voto Latino’s voter education and get-out-the-vote campaigns, the organization educates voters on, among other things, when and how to cast ballots by mail. In 2020, Voto Latino anticipates making expenditures in the millions of dollars to educate, register, mobilize, and turn out Latinx voters across the United States, including in Texas. Voto Latino has had to raise over $1 million to educate voters on how to vote by mail in the upcoming elections. Both individually and collectively, Texas’s Vote By Mail Restrictions directly harm Voto Latino by frustrating its mission of enfranchising and turning out Latinx voters in Texas because they burden and disenfranchise the very voters that Voto Latino seeks to support. In the context of COVID-19, the burdens on Voto Latino’s core constituency are even more severe, and the resources Voto Latino will need to divert from its voter registration efforts and digital advertisement budget to combat the burdens imposed by these laws—at minimum over $100,000, as well as the time and energy of its staff and volunteers in its seven Texas chapters—are even more substantial. The Postage Tax, for instance, disproportionately disadvantages Latinx voters in Texas, because Latinx voters are more likely to live in poverty and less likely to have access to transportation than other populations. The Postage Tax is an impediment to Voto Latino’s mission of turning out Latinx voters in Texas. Similarly, the Ballot Receipt Deadline requires Voto Latino to divert additional resources to significant outreach prior to Election Day to educate voters on the deadline and ensure that voters are able to mail or drop off their ballots in time. As a result of the Vote By Mail Restrictions, Voto Latino has had to—and will continue to—expend and divert additional funds and resources that it would otherwise spend on its efforts to accomplish its mission in other states or its own registration and GOTV efforts in Texas to combat the effects that Texas’s Vote By Mail Restrictions have on its core constituency. The time and resources diverted to these efforts are resources that Voto Latino would otherwise spend on its voter registration, digital
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advertisement, and GOTV programs. Because of the special circumstances surrounding COVID19, Voto Latino intends to engage in voter assistance programs. These programs would, but do not currently, include voter education and awareness campaigns and returning mail ballots for those electors who require assistance under certain circumstances. Voto Latino cannot further these activities because of Texas’s Voter Assistance Ban.
22. Plaintiff TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (“NAACP”) brings this action on its own and on behalf of its members and constituents. The NAACP is a nonpartisan, nonprofit organization founded in 1909. The first Texas branches of the NAACP were formed in 1915, and the Texas State Conference was formally organized in 1937. The Texas State Conference of the NAACP’s primary office is located in Austin, but the organization has over 100 units statewide, including in San Antonio. A large portion of the organization’s more than 10,000 members are Texas residents who are registered to vote in Texas. The NAACP’s membership consists largely of African Americans, and it considers its constituents and supporters to be people of color and/or members of other underrepresented and vulnerable populations, such as those with disabilities. The NAACP’s members and constituents are more likely than other populations to live in poverty, work in essential jobs that require more frequent exposure to the public, and suffer from underlying conditions that put them at risk of becoming more seriously ill from COVID-19. Recently, the NAACP has held three virtual town halls to educate the public about the disease and how to recognize symptoms and quarantine in difficult circumstances, and to educate minorityowned businesses about the economic resources available to provide financial assistance to businesses in the wake of the pandemic.
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23. The NAACP’s mission is to secure the political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons. To achieve its mission, the NAACP engages in voter education and registration activities such as Project VIER (“Voter Information, Education, and Registration”) in churches, neighborhoods, and on college campuses across the state to reach voters and help them to register and eventually, vote. Project VIER was created in 2015 to celebrate the 100-year anniversary of the Voting Rights Act. The Postage Tax, Ballot Receipt Deadline, and Signature Match Requirement frustrate the NAACP’s mission and cause the NAACP to divert resources from other programs and initiatives in order to assist the NAACP’s members and constituents specifically, and Texas voters generally, with overcoming the burdens imposed on them by these laws. In the context of COVID-19, these burdens are even more severe, and the resources that NAACP will need to divert from its other programs in order to combat burdens imposed by these laws are even more substantial. For example, the Postage Tax disproportionately disadvantages African-American voters in Texas, because African-American voters are more likely to live in poverty and less likely to have access to transportation than other populations. The Postage Tax, Ballot Receipt Deadline, and Signature Match Requirement are impediments to the NAACP’s mission of securing political equality for African-American voters in Texas.
24. Many of the NAACP’s members and constituents have never voted by mail due to various concerns, including that voting by mail raises the risk that their ballots will not be counted. Additionally, given the history of voting-related discrimination in Texas, the NAACP’s African-American members and constituents associate a historical significance with going to the polls and physically casting a ballot at the voting booth in person. However, given the threat of COVID-19, many of the NAACP’s members and constituents will vote by mail to protect their
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physical health and the health of others in their communities. As voters who will cast ballots by mail for the first time, the NAACP’s members and constituents are far more likely to be unfamiliar with the process for casting a ballot by mail. Accordingly, the NAACP will need to educate voters about voting by mail as an alternative to voting in person. The NAACP believes that the State of Texas has failed to put forth adequate safety measures for the upcoming July and November elections, meaning that its members and constituents are likely to face health hazards if they vote in person. The NAACP must divert additional time and resources to educate its members and constituents to make sure that they are able to obtain the postage necessary to mail their ballots; that they are aware of the Ballot Receipt Deadline and will be able to mail their ballots in time for them to be received timely by their county elections officials; and to make sure they are aware of the Signature Match Requirement and the need to contact county elections officials to ensure that their ballots have not been rejected on the basis of signature mismatch. The NAACP understands that the Vote By Mail Restrictions are unclear and confusing to voters. The NAACP understands that it will be important to have all information necessary to properly advise voters, and will spend a significant amount of time determining the applicable law and its requirements in order to communicate that information to voters. The time and resources diverted to these efforts are resources that the NAACP would otherwise spend on its core registration and civic engagement activities for the broader community.
25. The TEXAS ALLIANCE FOR RETIRED AMERICANS (the “Alliance”) is incorporated in Texas as a 501(c)(4) nonprofit, social welfare organization under the Internal Revenue Code. The Alliance has 145,038 members, composed of retirees from public and private sector unions, community organizations, and individual activists. It is a chartered state affiliate of the Alliance for Retired Americans. The Alliance’s mission is to ensure social and economic
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justice and full civil rights that retirees have earned after a lifetime of work. The Postage Tax, Ballot Receipt Deadline, Signature Match Requirement, and Voter Assistance Ban frustrate the Alliance’s mission because they threaten to deprive and in some cases successfully deprive individual members of the right to vote and to have their votes counted, threaten the electoral prospects of its endorsed candidates whose supporters will face greater obstacles casting a vote and having their votes counted, and makes it more difficult for the Alliance and its members to associate to effectively further their shared political purposes. The Alliance and its individual members spend resources on voter registration, phone banking, and GOTV activities, as well as activities aimed at expanding the Alliance itself, such as recruiting new members, opening new chapters, and making presentations to members’ groups and seniors’ groups. Since the emergence of the global health crisis, the Alliance has diverted resources from furthering its other activities to educate people on how to successfully vote by mail. For example, the Alliance has committed to calling 1,400 Texans over the age of 65 in Texas House District 100 to educate them on voting by mail. The Alliance understands that many more people will be voting by mail in November’s election, and it plans to continue its voter education efforts to ensure that Texans are aware of the Vote By Mail Restrictions. If not for the Vote By Mail Restrictions, the Alliance would be investing those resources into voter registration, phone banking, and GOTV activities.
26. Defendant Ruth Hughs is the Secretary of State of Texas and is named as a Defendant in her official capacity. She is the State’s chief elections officer and, as such, is responsible for the administration and implementation of election laws in Texas, including the Vote by Mail Restrictions at issue in this complaint. See Tex. Elec. Code § 31.001(a). The Secretary acted under color of state law at all times relevant to this action.
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FACTUAL ALLEGATIONS 27. COVID-19 will make it dangerous and more difficult for Texans to cast their ballots in person in November. To avoid exposure to the virus, many Texas citizens will seek to vote by mail out of necessity. The parameters of who exactly will be eligible to do so are still uncertain, but mere eligibility to vote by mail will not protect Texans’ against their right to do so being unconstitutionally burdened or, in many cases, effectively denied, by the Challenged Provisions. Plaintiffs bring this action to protect against that threat, which is imminent and certain, absent Court action to protect Texans’ exercise of the most fundamental right. A. COVID-19’s Impact on In-Person Voting 28. Virtually all aspects of life in our country today are affected by the unprecedented COVID-19 pandemic. Schools and businesses are closed; a majority of people in the country are sheltering in their homes; more than 30 million people have lost their jobs; and approximately 79,522 people have lost their lives. 29. In Texas, the virus has already infected 35,390 people and resulted in 973 deaths. Those numbers are expected to increase, with a likely resurgence anticipated in the fall, just as the state’s citizens present at polling locations to vote. 30. On April 2, a state-wide stay-at-home order took effect in Texas, requiring residents to maintain social distancing and avoid providing or obtaining all non-essential services in order to combat the virus’s spread. 31. While it is unclear whether there will be a statewide stay-at-home order in November, the threat posed by the pandemic is expected to continue for at least another 18 to 24 months, requiring that self-isolation and social distancing remain the norm, in order to protect the millions of Americans (and Texans) who are among the populations most vulnerable to the virus’s worst complications.
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32. Thus, Governor Abbott has acknowledged, even as he moves to “re-open” the state by easing certain restrictions that have been in place to stem the spread of the virus, “every scientific and medical report shows that when you have a reopening . . . it will actually lead to an increase and spread.”
33. Every jurisdiction that has held an election since the crisis began has experienced enormous difficulties in safely offering in person voting. Recognizing that Texas will prove no exception, county elections administrators have expressed serious concerns about holding the November Election in the same manner as Texas has held elections in the past.
34. Texas elections officials are already reporting concerns for retaining poll workers, the majority of which are over the age of 65 and therefore advised to shelter in place because of their vulnerability to severe complications with COVID-19.
35. Dr. Catherine Troisi, an infectious disease epidemiologist with the University of Texas Health Science Center at Houston, recently said that Texas election workers would be at risk because of their prolonged presence at polling places.
36. Elections officials have also recognized that, as they begin to prepare for in person voting, they will find themselves confronted with serious venue problems. This is because venues that have typically served as polling locations in the past—e.g., senior centers, schools, and churches—are likely to be unwilling to do so in upcoming elections because of the attendant public health risks. Meanwhile, other venues that could serve as polling locations are too small to accommodate the large number of expected voters while still maintaining social distancing.
37. A lack of poll workers to staff polling locations and a lack of venues to host polling locations will result in a decrease in open polling locations. This, in turn, will result in long lines that will make it difficult, if not impossible, for some people to vote.
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38. One Texas election official, Fort Bend County election administrator John Oldham, anticipates that voting lines “will easily stretch out across 10 blocks” if voters are social distancing in an effort to avoid risking contracting the virus. See Alexa Ura, Drive-thrus and free pencils: Texas plans for July elections with in-person voting, Texas Tribune (Apr. 20, 2020), https://www.texastribune.org/2020/04/20/despite-coronavirus-texas-plans-july-elections-personvoting/.
39. For the poll workers who are willing to staff polling places on Election Day, and the few locations that open their doors to the public for this purpose, county election officials anticipate struggling to provide sufficient sanitary supplies and protective equipment to keep voters and election workers safe during in-person voting. This may prove especially problematic for those counties employing touchscreen voting machines, which may require sanitizing after every voter to avoid voters passing the virus through contaminated surfaces.
40. All in all, voters who are forced to vote in person in the November Election will likely have to wait in unconscionably long lines, in close proximity to other voters for an extended period of time, and interact with poll workers who are not using protective equipment, in order to exercise their right to vote.
41. As the Bexar County elections administrator, Jacque Callanen, said of elections grave challenges in light of COVID-19, “It just keeps going on and on.” Id.
42. County election officials’ fears are well founded: the recent presidential primary election in Wisconsin illustrates the disaster that awaits a state when it refuses to accommodate necessary changes to election administration in light of this unprecedented crisis. Like in Texas, “the extent of the risk of holding [the] election ha[d] become increasingly clear” well before election day.” Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL
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1638374, at *1 (W.D. Wis. Apr. 2, 2020). It was understood that there would be “(1) a dramatic shortfall in the number of voters on election day as compared to recent primaries . . ., (2) a dramatic increase in the risk of cross-contamination of the coronavirus among in-person voters, poll workers and, ultimately, the general population in the State, or (3) a failure to achieve sufficient in-person voting to have a meaningful election with an increase in the spread of COVID-19.” Id. Cities in Wisconsin were forced to close polling locations. The result was crowds, long lines, and excessive wait times in the middle of a global pandemic whose abatement requires social distancing and spending as little time as possible outside of the home.
43. Tragically, though unsurprisingly, reports of COVID-19 cases resulting from voters who turned out to vote in Wisconsin’s election have emerged. Already, Wisconsin health officials have identified over 60 individuals who were infected with the disease while participating in April’s election. Many of these individuals are located in Milwaukee, where a lack of both poll workers and willing venues caused 18,803 voters to cast their ballots in only five polling locations, compared to the 200 polling locations the city had planned to operate before the threat of COVID19. That averages out to 3,761 voters per polling location.
44. Without significant changes to its electoral process, Texas will fare no better. If anything, it is reasonable to assume that the problems encountered in Wisconsin in its primary will be far worse in Texas in the coming November Election.
45. For example, in the 2018 general election, 131,705 people voted in 302 polling locations in Bexar County. Even with 302 polling locations, those voters waited in lines onehundred-people long.
46. Assuming that Bexar County is forced to close polling locations at the same rate as Milwaukee and that the County sees the same number of voters on November 3, 2020, as it did
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on November 6, 2018, we can anticipate that 131,705 people will cast their ballots at only eight voting locations in the County on November 3rd. That averages out to 16,463 voters per polling location, compared to Milwaukee’s 3,761 voters per polling location.
47. Voter turnout is likely to be higher in the presidential election than in the 2018 mid-term election; thus, these estimates are likely conservative.
48. A significant portion of Bexar County’s residents moreover, are at higher risk of tragic outcomes should they contract the virus. For example, a reported 14% of Bexar County adults are diabetic and 16% are family caregivers to elderly or disabled relatives. Forcing these voters to vote in person in the November Election could very well prove fatal to them or their loved ones. B. Vote by Mail in Texas
49. The solution is obvious: all Texans should be given the choice to cast their ballots by mail.
50. Voting by mail is not a novel idea, of course. Since 2000, more than a quarter of a billion votes have been cast in the United States via ballots received by voters at home, including 27% of the 118 million votes cast in the 2018 general election.
51. But these large numbers belie large discrepancies between states as to who can vote by mail. Each state has its own laws governing a voter’s eligibility, and Texas’s election code restricts eligibility for mail-in voting to a small minority of the State’s eligible voting population.
52. The Texas Election Code provides that a voter can early vote by mail only if the voter (1) will be absent from their county of residence during early in-person voting and on election day, Tex. Elec. Code § 82.001; (2) has “a sickness or physical condition (including expected or likely confinement for childbirth on election day) that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the
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voter’s health,” id. § 82.002(a), (3) is 65 years of age or older, id. § 82.003, or (4) is confined in jail but is otherwise entitled to vote, id. § 82.004.
53. As a result, only about 6% of Texans vote by mail in any given election. 54. In light of the public-health and disenfranchisement risks COVID-19 presents, Texas (like other states that restrict voting by mail) has been called to forego enforcing these requirements and extend the opportunity to vote by mail to all voters. 55. As Fort Bend County’s election administrator John Oldham put it: “Unless we can get another method of voting—ballot by mail being the only one—we’re going to be Wisconsin 10 times over.” Alexa Ura, Drive-thrus and free pencils: Texas plans for July elections with inperson voting, Texas Tribune, Apr. 20, 2020; see also supra ¶ 38. 56. The calls to expand voting by mail have come from both sides of the aisle: 65% of Republicans support the expansion of voting by mail to protect voters from COVID-19; four out of five Americans believe states should give all voters the option to vote by mail without an excuse during the November election; the Republican National Committee urged its voters to vote by mail to “protect [themselves] from large crowds on Election Day,” see Amy Gardner and Elise Viebeck, GOP pushes voting by mail - with restrictions - while Trump attacks it as ‘corrupt,’ Washington Post, (Apr. 13, 2020), https://www.washingtonpost.com/politics/gop-pushes-votingby-mail--with-restrictions--as-trump-attacks-it-as-corrupt/2020/04/12/526057a4-7bf8-11ea-a130df573469f094_story.html; and Utah Director of Elections Justin Lee said, “Being a very red state, we haven’t seen anything [about voting by mail] that helps one party over another at all. We’ve heard less concern about voter fraud than about whether every ballot that should get counted does get counted,” David Weigel, The Trailer: The fear and politics around expanding voting by mail, Washington Post, (Apr. 2, 2020), https://www.washingtonpost.com/politics/paloma/the-
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trailer/2020/04/02/the-trailer-the-fear-and-politics-around-expanding-voting-bymail/5e84980e602ff10d49ada414/.
57. Texas, however, has resisted these calls, staunchly insisting that vote by mail should be limited to a small fraction of the state’s voters, and rejecting calls that the statutory text should be interpreted to permit voters who fear contracting the virus to vote absentee under the exception for disability.
58. As a result, several lawsuits have been filed, in both state and federal court, seeking judicial intervention to require Texas to ensure that vote by mail is broadly accessible during the crisis.
59. As a result, the 201st Judicial District in Travis County recently issued a preliminary injunction that interprets the definition of “disability” in Tex. Elec. Code § 82.002 to plainly encompass voters who lack immunity to COVID-19. The order specifically enjoins the state from “rejecting any mail ballot applications received from registered voters who use the disability category of eligibility as a result of the COVID-19 pandemic for the reason that the applications were submitted based on the disability category.” Texas Democratic Party v. Debeauvoir, No. D-1-GN-20-001610 (Tex. 201st Dist. Apr. 17, 2020) (order granting preliminary injunction).
60. The State (but not defendant DeBeauvoir, the Travis County Clerk) appealed, and in the weeks since, Texas Attorney General Paxton has publicly taken the position that, so long as the appeal is pending, the order has no effect, and has threatened voters, voter assistance organizations, county judges, and county election officials with potentially criminal consequences, should they proceed as if the state court’s order remains in place.
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C. Vote By Mail Restrictions in Light of COVID-19 61. Even if all registered voters are eligible to vote by mail in Texas in the November
Election, that would not be sufficient to prevent the serious risk of disenfranchisement and threats to public health that will occur if the Vote By Mail Restrictions remain in place in the pandemic.
62. Tellingly, Wisconsin allows any registered voter to vote by mail, with or without an excuse; but even with universal eligibility to vote by mail, Wisconsin’s April election was a disaster for both public health and voting rights because many voters were unable to have their mail-in ballots counted, and those who voted in person risked their health to do so.
63. Thus, beyond universal eligibility, Texas must also ensure that every voter has the ability to vote by mail to ensure their ballots are counted.
64. The Vote By Mail Restrictions serve to impede and in some cases entirely deny access to vote-by-mail in Texas, particularly to those voters who come from disadvantaged communities, the poor, the elderly, and other vulnerable populations. Many of these individuals have historically relied on in-person voting, which, as discussed above, will be severely restricted in upcoming elections.
65. In order to ensure that all citizens have reasonable and equal access to the electoral process, Texas must remove unnecessary restrictions on voting by mail that will otherwise deny its citizens their fundamental right to vote. These Vote By Mail Restrictions include the Postage Tax, the Ballot Receipt Deadline, the Signature Match Requirement, and the Voter Assistance Ban.
Postage Tax 66. Texas’s Postage Tax requires voters to pay for the postage to return their marked mail-in ballot to their county of residence. See Tex. Elec. Code § 86.002. This requirement threatens to disenfranchise Texans in November, as it presents several practical problems that are, for some, insurmountable.
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67. First, through the Postage Tax, Texas effectively imposes a monetary cost on voters whose only option to vote safely is to cast a vote by mail.
68. The severity of the burdens imposed by the Postage Tax are significantly exacerbated under the present circumstances, when many Texans are suffering from the devastating economic impact of COVID-19, and it requires voters who do not have ready access to postage to subject themselves to public health risks in order to visit a post office or return their ballots in-person.
69. Many Texans do not have stamps at home. The volume of mail sent through the USPS has declined 43% since 2001. Because many now pay their bills online, stamps are no longer a household staple.
70. Before the current global health crisis, a voter could go to the post office to buy a single stamp; today, given that many voters who request an absentee ballot will be doing so because they have underlying conditions that put them at higher risk for severe complications from COVID-19, such voters are far less likely to be willing to leave their homes to purchase stamps because of the severe threat to their health that doing so could pose.
71. While there are some services that allow voters to print postage online, these services also require a printer, scale, and paid subscription. A voter can order stamps online on the USPS website, however, they take five to seven days to be delivered under normal circumstances, are not sold individually, must be purchased on a sheet of stamps that costs a minimum of $11.00, and require the purchaser to pay for shipping and handling of the stamps themselves.
72. It is also not always clear how much postage a voter may need in order to return their ballot. Depending on the number of races at issue in a given jurisdictions, it may require more than one First-Class stamp to cover the return postage.
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73. Though the cost of a First-Class stamp or two may seem trivial to some, there are over 1.3 million people presently unemployed in Texas because of the pandemic, and many of them are in a position where they must conserve all of their resources in order to survive.
74. This is not hyperbole; it is the reality for many Americans who find themselves suddenly destitute in the current crisis. Washington County resident Summer Mossbarger, for example, is an unemployed, disabled army veteran who picks up free lunch from a local public school to feed her six children and herself eats nothing all day. Manny Fernandez, Coronavirus and Poverty: A Mother Skips Meals So Her Children Can Eat, New York Times, Mar. 20, 2020, https://www.nytimes.com/2020/03/20/us/coronavirus-poverty-school-lunch.html. If Ms. Mossbarger skips meals so her children can eat, there is little doubt about how she would choose between feeding her children and a buying a stamp to vote. The disenfranchisement of people like Ms. Mossbarger is not simply an injury to their constitutional rights; it is also an injury to our nation’s democracy, which often fails to protect those who cannot advocate for their interests by casting a vote.
75. It is thus no surprise that removing the barrier to voting caused by postage costs enfranchises more voters. Studies have shown that sending absentee ballots in postage-prepaid envelopes markedly increases mail voting turnout. For example, when King County, Washington initiated prepaid postage pilot programs during the 2017 and 2018 primary elections, voters returned their absentee ballots via USPS at higher rates when they received return envelopes with postage prepaid. In the 2016 general election, 48% of the test group of voters returned their absentee ballots via USPS. In 2017, 81% of those voters did. This was not a function of shifting in person voting to absentee voting—providing prepaid postage made voters more likely to vote. In the 2017 primary, turnout rose 10%. In the 2018 primary, it rose 6%. Following these pilot
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programs, King County sent all absentee ballots with postage-prepaid return envelopes. And shortly after that, the Governor and Secretary of State of Washington funded prepaid postage for every county in the state.
76. Because many Texans will be unable or unwilling to vote in person in November, those who are eligible will apply to vote by mail. However, the Postage Tax will stand in the way of many of these voters successfully sending their ballots in to be counted, imposing unconstitutional burdens that will, in many cases, result in their disenfranchisement.
Ballot Receipt Deadline 77. Texas’s Ballot Receipt Deadline—which requires ballots to be postmarked by 7:00 p.m. on election day and received by the county by 5:00 p.m. the day after the election, Tex. Elec. Code § 86.007—also threatens voters’ ability to vote in the November Election. 78. The Ballot Receipt Deadline is misleading even in the most orderly of times. The deadline suggests to voters that it is possible to mail a ballot at 7:00 p.m. on election day such that the county receives it by 5:00 p.m. the next day. But the USPS advises that First-Class mail typically takes approximately three and a half days to arrive at its destination even under normal circumstances. The USPS has also recommended—in a pre-COVID-19 world—that jurisdictions tell their citizens to mail their ballots at least a week before ballots are due because of increased mail demands around the time of an election. 79. Even assuming that the USPS will operate as efficiently this November as it does when it is not under the strain of a global pandemic, the reality is that ballots mailed by 7:00 p.m. on election day will likely arrive at their destination after the Ballot Receipt Deadline, disenfranchising countless voters as a result. 80. Nor are these normal times. The COVID-19 crisis is already leading to an increase in postal delays. Furthermore, the coming election, in which more voters will turn to voting by
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mail to avoid exposing themselves to the virus, is likely to coincide with a budgetary crisis the USPS is facing due to COVID-19—a crisis that threatens to shutter the entire agency.
81. USPS is also operating with significantly reduced staff as more and more fall victim to the virus themselves. As of mid-April, nearly 500 postal workers across the country have tested positive for COVID-19, 19 have died, and more than 6,000 are in self-quarantine because of exposure.
82. The USPS’s budget and personnel struggles have harsh implications for Texans’ voting rights. In the past, when the USPS has faced a budget crisis, it has responded by closing processing centers. Moving forward, it is likely that the USPS will need to make cuts to routes, processing centers, or staff, any of which is likely to increase mail processing delays.
83. This all means that, as the USPS attempts to deliver an unprecedented number of vote-by-mail ballots across the country—both from county elections officials to voters, and then back again—the system will be under increasing pressure, causing increased delays and, ultimately, an increase in the number of ballots that are not timely returned before the Ballot Receipt Deadline and are thus not counted.
84. Again, Wisconsin serves as an ominous warning. In its recent primary election, the USPS struggled to deliver vote-by-mail ballots to voters, with some ballots delayed and others never arriving.
85. In response, both of Wisconsin’s U.S. Senators wrote to the Inspector General for the USPS seeking an investigation into “absentee ballots not being delivered in a timely manner” and the USPS’s failure to deliver in this regard. There were similar delays returning ballots to election officials.
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86. In total, approximately 108,000 absentee ballots were received by elections officials in Wisconsin after election day but before April 13th. These ballots would have been rejected but for the Supreme Court’s decision to extend the deadline in light of the pandemic, meaning that each of the voters who had cast those ballots would have been disenfranchised by Wisconsin’s arbitrarily early ballot receipt deadline without that judicial intervention.
87. The delay of election officials in delivering properly requested absentee ballots to voters—whether due to election officials processing a large volume of absentee ballot applications or the USPS struggling to deliver absentee ballots to voters—will impede voters’ ability to timely return their absentee ballots through no fault of the voter.
88. Texas voters who traditionally vote in person who will now attempt to vote by mail are particularly likely to be disenfranchised by the Ballot Receipt Deadline.
89. Voters who have not previously utilized vote by mail are much less likely to know that they need to send in a ballot not just so that it postmarked on election day, but so that it arrives by 5:00 p.m. the day after the election.
90. It is unremarkable that these voters would be more likely to cast their vote-bymail ballots later given that they are also likely to be less familiar with the voting by mail, including the Ballot Receipt Deadline. And it is not unreasonable for them to think that their ballots can be mailed later in the election cycle as long as they are postmarked by Election Day, as many other deadlines in Texas voters’ lives⸺including voter registration deadlines⸺are postmark deadlines. See, e.g., Tex. Elec. Code § 13.143(d) (voter registration applications deemed “to be submitted to the registrar on the date it is placed with postage prepaid and properly addressed in the United States mail”); Tex. Tax Code § 1.08 (provision rendering property owner’s submission of
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payments timely where the payment is postmarked by a required due date); 26 U.S.C. § 7502 (“Timely mailing [of annual federal tax filings] treated as timely filing and paying”).
91. Regardless of whether ballots mailed on election day arrive at their destination four days after they were mailed, a week after, or even longer, those ballots will not be counted because of Texas’s Ballot Receipt Deadline. This would squarely conflict with the holding in Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020), in which all nine Justices unanimously agreed that it was appropriate to extend Wisconsin’s Ballot Receipt Deadline by an additional six days, with the 5-4 disagreement being over whether those ballots had to be postmarked by election day itself. Compare id. at 1206-08 with id. at 1211 (Ginsburg, J., dissenting) (“If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?”).
92. Ultimately, if Texas’s current Ballot Receipt Deadline is enforced, hundreds of thousands of ballots are likely to be rejected, resulting in the disenfranchisement of hundreds of thousands of Texas voters. That turns not on these voters’ actions, but on the vagaries of a postal service operating under a budget crisis during a global pandemic.
93. Texas has no meaningful need for its day-after election day deadline and nothing that can justify the severe burdens on voters during these unprecedented times. Indeed, the Secretary advises county election administrators that they need not count these ballots until six days after election day at the earliest. In its 30th Annual Election Law Seminar, in a presentation entitled “Early Voting by Mail,” Genevieve Gill, a staff attorney with the Texas Secretary of State, instructed early voting boards not to count early mail-in ballots received the day after the election until they convene to count mail-in ballots received from overseas, which are not due until the fifth day after the election. Genevieve Gill, Early Voting by Mail, Texas Secretary of State - Elections
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Division Law Seminar, Nov. 2018, https://www.sos.texas.gov/elections/forms/seminar/2018/30th/ presentation-files/Early-Voting-by-Mail-(ABBM).ppsx.
94. This means that mail-in ballots that arrive at 5:00 pm the day after the election will be put in a box to be counted five days later at the earliest. And while those ballots sit in their box waiting to be counted, mail-in ballots postmarked by election day will be set aside, never be counted, because they arrived minutes, hours, or days after the State’s artificial and arbitrary deadline.
95. Because the Ballot Receipt Deadline will arbitrarily exclude ballots mailed on or before election day from being counted, resulting in the complete disenfranchisement of countless lawful, eligible voters, it imposes a severe burden on Texas that cannot be constitutionally justified under the current circumstances.
Signature Match Requirement 96. Texas’s Signature Match Requirement requires county officials to verify each mail-in voter’s signature by comparing it with the voter’s signature on the vote-by-mail application and, if needed or available, other signatures from the voter over the previous six years. Tex. Elec. Code § 87.027. This requirement imposes unsustainable burdens on eligible voters’ right to vote for several reasons. 97. First, the county officials that verify signatures are untrained and have no expertise in forensic handwriting. The Secretary herself recognizes that these officials “are not handwriting experts.” Early Voting Ballot Board & Signature Verification Committee - Handbook for Election Judges and Clerks 2020, The Office of the Texas Secretary of State, Elections Division, https://www.sos.state.tx.us/elections/forms/ballot-board-handbook.pdf. But the State provides neither uniform standards nor meaningful training to these non-experts tasked with determining whether a vote will count or not.
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98. Rather, election officials are told that “[e]ven if unsure [they] must make a decision whether to accept or reject a signature.” Id. at 37. How? They should just “use their best judgment . . . to verify if these signatures are the same.” Id. The Secretary does not clarify how a group of untrained non-experts who are unsure of a signature’s authenticity should decide one way or the other.
99. But even if there were some discernible standard used to decide whether two signatures were the same—which there is not—signatures matching is at best a highly dubious and challenging art, for the simple fact that signatures change all the time for any number of reasons. People break their dominant hand, change their name, or develop a tremor. In fact, some of the voters currently eligible to vote by mail—such as the elderly and the disabled—are the same voters whose signatures are most likely to change because of evolving physical abilities.
100. Experts have consistently found that signature matching is difficult to do accurately even under the most ideal circumstances—when the person undertaking it is highly skilled, has ample time to make comparisons, and ample and timely exemplars of a person’s signature written under similar conditions. Amateur signature matchers, they find, are highly likely to misidentify as a mismatch entirely valid signatures, and they do so at alarming rates.
101. As such, voters are subject to disenfranchisement based on the untrained guesses of overworked elections officials with no expertise in an already dubious art, using the entirely standardless and arbitrary guidance of applying their “best judgment,” where their mistake results in the total denial of the most fundamental right.
102. The lack of training and uniform standards, moreover, guarantees that voters will be treated differently on entirely arbitrary grounds, depending on who happens to review their signature. This arbitrary disparate treatment will result in higher levels of disenfranchisement in
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different counties—indeed, even within single jurisdictions—based on factors entirely outside of the voters’ control. Recent studies also suggest that there are differential patterns of rejected mailin ballots across racial and ethnic groups, which causes a disparate impact on non-White voters’ ability to have their mail-in ballots counted.
103. Adding to the problem, Texas provides voters with no opportunity to cure election officials’ mistaken determinations that two signatures do not “match.” Unlike many states, Texas provides no process whatsoever for a voter to cure a signature mismatch. Rather, the county need only notify the voter of their mail-in ballot’s rejection due to signature mismatch within 10 days after the election, at which point such notification is meaningless. Id. § 87.0431.
104. Thus, the Signature Match Requirement guarantees that untrained election administrators will mistakenly and arbitrarily reject ballots from qualified voters who complied with every requirement of Texas law, disenfranchising countless entirely lawful, eligible voters with no opportunity for the voters to correct the error.
Voter Assistance Ban 105. Texas’s failure to safeguard the rights of voters affected by mail service disruptions is compounded by the fact that Texas law imposes a Voter Assistance Ban that criminalizes third parties from assisting voters in mailing their mail-in ballots except in narrow circumstances, such as when the third party is closely related to the voter or lives with the voter, or if the voter is disabled, and criminalizes their parties from assisting voters in delivering mail ballots to the county without exception. Tex. Elec. Code § 86.006. 106. Thus, to avoid the uncertainty of mail delivery, voters who are able to submit their ballots in person will be forced to leave their homes to personally deliver their ballots, subjecting themselves to health risks.
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107. The burden is heavier on poor, minority, and rural voters who generally have less access to postal services, are less likely to have access to personal and reliable transportation, and are less able to bear the costs of waiting in long lines to vote or exposing themselves to health risks in order to submit a mail ballot in person. Voters in rural communities, moreover, face longer travel distances to their county board of elections office and even less reliable mail service.
108. Texas ranks third among the 50 states by the size of its population over the age of 65 and the burdens imposed by the Voter Assistance Ban will be heavily felt among them, particularly in the current health crisis. Seniors, especially those living in community homes or nursing homes, are particularly vulnerable to the current health risks and have expressed concern that they have no reliable way to deliver their ballots to the proper polling site; they cannot trust that the ballot will be delivered on time through the postal service, and they cannot personally deliver the ballot due to health concerns. Indeed, many senior living centers have forbidden their residents to leave.
109. The burden caused by the prohibition on third party ballot collection is made worse by the current pandemic, which will cause many Texans who have not previously voted by mail do so for the first time. Many such voters will require assistance in returning their ballots to the appropriate election officials.
110. The criminalization of voter assistance deters good Samaritans from assisting those who are unable to deliver their ballots themselves. The Voter Assistance Ban therefore presents an undue burden on voters generally and will operate to disenfranchise a large swath of Texas’s eligible voters during the current pandemic by resulting in these voters’ ballots not being counted.
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111. Those who cannot submit their mail-in ballots in person will either have to rely on the overextended USPS or may simply be deterred from submitting their mail-in ballots altogether. This will result in hundreds of thousands of lawful, eligible Texas voters being effectively disenfranchised.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF U.S. Const. amends. 1, 14; 42 U.S.C. § 1983 Undue Burden on the Right to Vote (All Vote by Mail Requirements) 112. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs below as though fully set forth herein. 113. Under the Anderson-Burdick balancing test, a court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights 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 v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). 114. The Postage Tax’s burden on the right to vote is severe. At best, it requires Texans—millions of whom are vulnerable to severe complications from COVID-19 or have vulnerable loved ones—to pay to vote by mail so that they can avoid exposing themselves to the virus while exercising their right to vote. At worst, it disenfranchises the millions of Texans who cannot risk exposure to COVID-19 but who also cannot obtain postage to mail their ballots.
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115. The Secretary can offer no justification that outweighs the significance of the burden under the current circumstances.
116. The Ballot Receipt Deadline will arbitrarily disenfranchise countless Texas voters for reasons outside their control. It is axiomatic that, “[t]he right to vote includes the right to have the ballot counted.” Reynolds, 377 U.S. at 555 n.29 (citation and quotation omitted). In light of the barriers to in-person voting posed by COVID-19 and the potential expansion of vote-by-mail eligibility, the number of Texans voting by mail will increase dramatically in upcoming elections. The millions of mail-in ballots that will be cast in Texas’s November Election will be subject to the vagaries of the USPS, an agency facing grave difficulties because of the ongoing global pandemic. For this reason, Plaintiffs and countless other Texans face an impermissible risk of arbitrary disenfranchisement, in violation of their constitutional rights.
117. The justification that the Secretary surely will proffer—that allowing mail-in ballots to arrive late will impose significant administrative costs on counties and the state in processing those ballots—is meritless in light of the fact that it instructs counties to wait until the sixth day after the election to county mail-in ballots along with overseas ballots. Moreover, any administrative costs are dwarfed by the constitutional injury to the Texans completely disenfranchised because USPS did not timely deliver a ballot timely mailed by the voter.
118. The Signature Match Requirement subjects Texans who vote by mail to an arbitrary and error-prone verification process that can result in the rejection of their ballots without notice or an opportunity to cure. Texas does not promulgate a clear, uniform set of standards that would allow non-handwriting experts to discern whether the same person signed two different documents. If, for one of many common reasons, a voter’s signature on their ballot is determined to look different from the signature on their vote-by-mail application or other signatures on file
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over the previous six years, their ballot will be rejected. The voter will only be informed 10 days after the election. Unbeknownst to them, after making every effort to exercise their right to vote, they will be disenfranchised in that election.
119. The Secretary has no valid interest served by the Signature Match Requirement. If there is any administrative burden implicated by the Signature Match Requirement, it is that unqualified county election officials use their “best judgment” to verify signatures. The administrative burden of notifying voters of signature mismatch is no different before the election than it is after the election, when counties are now required to notify voters that their ballots were rejected. And the opportunity to cure is not a significant burden, as evidenced by the many other states that present the opportunity to voters. Furthermore, the Signature Match Requirement does not serve an interest in fraud that could not otherwise be achieved without the disenfranchisement of countless Texas voters. This is not a controversial conclusion: courts have found similar signature-verification laws impose an unjustifiably severe burden on the right to vote even before the global pandemic made it necessary for many to vote by mail. See, e.g., Democratic Exec. Comm. v. Lee, 915 F. 3d 1312, 1321-26 (11th Cir. 2019); Fla. Democratic Party v. Detzner, No. 4:16-cv-607, 2016 WL 6090943, at *7 (N.D. Fla. Oct. 16, 2016).
120. The Voter Assistance Ban imposes a severe burden on the right to vote because it will effectively disenfranchise voters who require assistance in returning their mail-in ballots. Because many Texans will be casting mail-in ballots for the first time come November and are therefore unfamiliar with the process, and because of unpredictable USPS delivery, some voters will find it necessary to drop off their mail-in ballots directly to the county. However, many of these voters will not be able to do so in light of the public health crisis, nor will they be able to receive assistance by way of a third party collecting and returning their ballots because the Voter
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Assistance Ban makes that collection a felony. These voters will have to send their mail-in ballots in on Election Day knowing full well that those ballots are unlikely to arrive in time to be counted. The State’s interest in enforcing the Voter Assistance Ban cannot justify disenfranchising voters who require assistance to timely deliver their ballots to the state. And other Texas laws already criminalize any exercise of undue influence or voting fraud that might be captured by the Voter Assistance Ban.
121. In short, the Challenged Provisions are not supported by a state interest that is sufficient to justify the resulting burdens on the right to vote, and thus, these laws violate the First and Fourteenth Amendments.
SECOND CLAIM FOR RELIEF U.S. Const. amend. 14; 42 U.S.C. § 1983
Violation of Equal Protection (Ballot Receipt Deadline and Signature Match Requirement) 122. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs below as though fully set forth herein. 123. The Equal Protection Clause protects “the equal weight accorded to each vote and the equal dignity owed to each voter.” Bush v. Gore, 531 U.S. 98, 105 (2000). The Ballot Receipt Deadline, as applied, treats Texans different depending on where they live: the rate of ballots rejected because those ballots were received late differs between counties. This is because the levels of strictness with which counties enforce the Ballot Receipt Deadline vary. 124. The disparate treatment of voters is particularly troubling in light of the fact that Defendant instructs counties to wait to count early mail-in ballots until 6 days after the election at the earliest. The discrimination on the basis of geography resulting from the Ballot Receipt Deadline severely burdens voters who are effectively disenfranchised because their counties of
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residence reject their mail-in ballots for arriving late, while ballots arriving at the same time in another county continue to be counted.
The Signature Match Requirement, by failing to require a uniform standard by which counties should verify signatures on mail-in ballots, leads to “the value of one person’s vote over that of another.” See Bush, 531 U.S. at 104-05. Because there is no functional standard, different counties have different procedures for verifying signatures that result in more stringent standards for signature verification in some counties and less stringent standards in others. The Requirement also discriminates on the basis of age and disability, as young voters, elderly voters, and disabled voters are more likely to have changing signatures that result in mismatch and their ballots being set aside. This discrimination results in a severe burden: the disenfranchisement of voters whose mail-in ballots are rejected. As discussed above, the state has no compelling, let alone rational, interest in treating similarly situated voters differently.
THIRD CLAIM FOR RELIEF U.S. Const. amend. 14; 42 U.S.C. § 1983
Violation of Procedural Due Process (Signature Match Requirement and Voter Assistance Ban) 125. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs below as though fully set forth herein. 126. Before depriving an individual of a liberty interest—such as the right to have their vote counted, Reynolds, 377 U.S. at 555 n.29—the state must provide the individual with notice and the opportunity to be heard. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). 127. The Signature Match Requirement violates Plaintiffs’ right to procedural due process by threatening to set Texas voters’ mail-in ballots aside, not to be counted, on signature-
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verification grounds, without providing voters notice of their signature mismatch and the opportunity to cure. Indeed, several courts have found that signature-verification laws that impose amorphous verification standards and fail to provide voters with the opportunity to cure violate procedural due process. See, e.g., LULAC v. Pate, No. CVCV056403, 2019 WL 6358335, at *15*17 (Ia. Dist. Ct. Sept. 30, 2019); Martin v. Kemp, 341 F. Supp. 3d 1326, 1338-40 (N.D. Ga. 2018); Saucedo v. Gardner, 335 F. Supp. 3d 202, 218 (D.N.H. 2018).
FOURTH CLAIM FOR RELIEF U.S. Const. amends. 14, 24; 42 U.S.C. § 1983
Violation of Prohibition on Poll Tax (Postage Tax)
128. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs below as though fully set forth herein.
129. The Twenty-Fourth Amendment to the United States Constitution provides that: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV § 1.
130. The Equal Protection Clause of the Fourteenth Amendment provides: “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
131. Both amendments prohibit the government from imposing a poll tax. See Harman v. Forssenius, 380 U.S. 528 (1965); Harper v. Va. State Bd. of Elect., 383 U.S. 663 (1966).
132. During the COVID-19 public health crisis, the only safe way for many Texas voters to cast their ballots will be by mail. Indeed, the CDC recommends for voters who are legally
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permitted to cast their ballots by mail to do so. But if voters must spend money to safely exercise their right to vote—whether in the form of paying a fee or paying for postage—they are subject to a poll tax.
133. Based on the foregoing, the Secretary’s enforcement of the Postage Tax has burdened and deprived and will continue to burden and deprive voters like Ms. Lewis, Mr. Morgan, as well as the members and constituents of Plaintiffs Voto Latino, the NAACP, and the Alliance, of their right to vote in federal elections, secured to them by the Fourteenth and Twenty-Fourth Amendments to the United States Constitution and protected by 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Declare that the Ballot Receipt Deadline, Postage Tax, Signature Verification
Provision, and Voter Assistance Ban are unconstitutional; B. Preliminarily and permanently enjoin Defendant, and her respective agents, officers,
employees, and successors, and all persons acting in concert with each or any of them, requiring them to provide prepaid postage on the ballot carrier envelopes used to return the marked mail-in ballots to the counties; C. Preliminarily and permanently enjoin Defendant, and her respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting vote-by-mail ballots if those ballots are postmarked by 7:00 p.m. on election day and received by the county election administrator before it canvases the election; D. Preliminarily and permanently enjoin Defendant, and her respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting mail-in ballots on signature verification grounds, or preliminarily and
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permanently enjoin Defendant, and her respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, such that they are required to provide voters the opportunity to cure any issues with signature verification before their ballots are rejected; E. Preliminarily and permanently enjoin Defendant, and her respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from implementing, enforcing, or giving any effect to the Voter Assistance Ban; and F. Grant such other or further relief as the Court deems just and proper.

Dated: May 11, 2020

Respectfully submitted,
/s/ Skyler Howton Skyler M. Howton, TX# 24077907 PERKINS COIE LLP 500 North Akard St., Suite 3300 Dallas, TX 75201-3347 Telephone: (214) 965-7700 Facsimile: (214) 965-7799 showton@perkinscoie.com
Marc E. Elias* Aria C. Branch* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com abranch@perkinscoie.com
Kevin J. Hamilton* William B. Stafford* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000

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khamilton@perkinscoie.com wstafford@perkinscoie.com Gillian Kuhlmann* PERKINS COIE LLP 1888 Century Park East, Suite 1700 Century City, California 90067 Telephone: (310) 788-9900 Facsimile: (310) 788-3399 gkuhlmann@perkinscoie.com Sarah Langberg Schirack* PERKINS COIE LLP 1029 West Third Avenue, Suite 300 Anchorage, Alaska 99501 Telephone: (907) 279-8561 Facsimile: (907) 276-3108 sschirack@perkinscoie.com Attorneys for Plaintiffs *Pro hac vice applications forthcoming
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 Case 5:20-cv-00577-OLG Document 17 Filed 06/03/20 Page 1 of 30

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

LINDA JANN LEWIS; MADISON LEE; ELLEN SWEETS; BENNY ALEXANDER; GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; and TEXAS ALLIANCE OF RETIRED AMERICANS,
Plaintiffs,
v.
RUTH HUGHS, in her official capacity as the Texas Secretary of State,
Defendant.

CIVIL ACTION NO. 5:20-cv-00577-OLG

THE TEXAS SECRETARY OF STATE’S MOTION TO DISMISS OR, IN THE ALERNATIVE, FOR A MORE DEFINITE STATEMENT

Case 5:20-cv-00577-OLG Document 17 Filed 06/03/20 Page 2 of 30
TABLE OF CONTENTS Table of Contents .............................................................................................................................................. ii Introduction........................................................................................................................................................ 1 Argument ............................................................................................................................................................2
I. Sovereign Immunity Bars Plaintiffs’ Claims......................................................................................2 II. Plaintiffs Lack Standing....................................................................................................................4
A. Injury in Fact..................................................................................................................................4 B. Causation and Redressability .......................................................................................................9 C. Organizational Plaintiffs Lack Statutory Standing .................................................................10 III. Plaintiffs Fail to State a Claim. ......................................................................................................11 A. Plaintiffs’ Right to Vote Is Not Implicated by a Non-Existent “Postage Tax.” ...............11 B. The Deadline for Returning Ballots Is Reasonable and Constitutional ..............................16 C. Failing to Verify Signatures Would Invite Election Fraud....................................................20 D. Ballot Harvesting Is Not a Constitutional Right ....................................................................25 Conclusion ........................................................................................................................................................27
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INTRODUCTION “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)). And no one disputes that Texas elections must be administered fairly, run in an orderly manner, and convenient for voters. The Legislature has carefully balanced those important interests in the Texas Election Code. Seeking to upset that balance, Plaintiffs ask this Court to strike down four commonsense provisions that have been widely adopted by other States. First, Plaintiffs complain about a “postage tax,” but there is no such thing. Everyone can vote without buying postage, much less paying a tax to the State. Second, Plaintiffs challenge the deadline for returning mail-in ballots. Texas’s deadline is already more lenient than most States’ deadlines. Pushing it back further would endanger local officials’ abilities to timely process and count votes. Third, Plaintiffs seek to prevent local officials from verifying the signatures accompanying mail-in ballots. Signature verification is a common anti-fraud tool. Failing to verify signatures would invite election tampering. Fourth, Plaintiffs complain that Texas law limits who can handle a voter’s mail-in ballot. This type of law, which is common to many States, prevents a form of election tampering commonly known as ballot harvesting. Plaintiffs seek to expand Texas’s already-generous list to include practically anyone, which would eliminate the anti-fraud benefits of the rule. These four regulations are well within Texas’s constitutional power. E.g., U.S. CONST. art. I, § 4, cl. 1. Plaintiffs allege these regulations are inconvenient, but “[e]very decision that a State makes in regulating its elections will, inevitably, result in somewhat more inconvenience for some voters than for others.” Lee v. Va. State Bd. of Elections, 843 F.3d 592, 601 (4th Cir. 2016). The law is clear, however, that plaintiffs cannot “make an unjustified leap from the disparate inconveniences that voters face when
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voting to the denial or abridgment of the right to vote.” Id. at 600–01. Moreover, any inconvenience is more than outweighed by Texas’s obligation to prohibit “all undue influence in elections from power, bribery, tumult, or other improper practice.” Tex. Const. art. VI, § 2(c). Texas is constitutionally bound to enforce such “regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box.” Tex. Const. art. VI, § 4. That is why Plaintiffs’ claims should be dismissed.
But the Court need not reach the merits because Plaintiffs’ claims suffer from threshold jurisdictional and procedural defects. Sovereign immunity bars their claims because the Secretary does not enforce the laws being challenged. Moreover, Plaintiffs lack standing because any prediction that these laws will affect their ballots is speculative.
ARGUMENT I. Sovereign Immunity Bars Plaintiffs’ Claims
Sovereign immunity precludes claims against state officials unless the Ex parte Young exception applies. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004). 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.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (citation omitted). Consequently, Ex parte Young applies only when the defendant enforces the challenged statute. See Ex parte Young, 209 U.S. 123, 157 (1908); City of Austin v. Paxton, 943 F.3d 993, 1001–02 (5th Cir. 2019); Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (a proper defendant has both “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty”).
The Secretary does not implement the four aspects of Texas law that Plaintiffs challenge. Local officials do. The four injunctions Plaintiffs request in their prayer for relief make this plain. First, Plaintiffs request an injunction “requiring . . . prepaid postage on the ballot carrier envelopes used to return the marked mail-in ballots to the counties.” ECF 1 at 41. The Secretary does not provide ballot
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carrier envelopes—local officials do. See Tex. Elec. Code § 86.002(a). Second, Plaintiffs seek an injunction prohibiting “rejecting vote-by-mail ballots if those ballots are postmarked by 7:00 p.m. on election day and received by the county election administrator before it canvases the election.” ECF 1 at 41. The Secretary does not reject (or accept) vote-by-mail ballots—local officials do. See Tex. Elec. Code § 86.011(a), (c). Third, Plaintiffs pray for an injunction either prohibiting “rejecting mail-in ballots on signature verification grounds” or requiring that voters be provided “the opportunity to cure any issues with signature verification before their ballots are rejected.” ECF 1 at 41–42. The Secretary is not responsible for accepting vote-by-mail ballots or providing notice—local officials are. See Tex. Elec. Code § 87.041(a) (“The early voting ballot board shall open each jacket envelope for an early voting ballot voted by mail and determine whether to accept the voter’s ballot.”); id. § 87.0431(a) (providing “the presiding judge of the early voting ballot board shall deliver written notice of the reason for the rejection of a ballot to the voter”); id. § 87.027 (a signature verification committee can be established by the county). Fourth, Plaintiffs ask for an injunction prohibiting “implementing, enforcing, or giving any effect to the Voter Assistance Ban.” ECF 1 at 42. Plaintiffs complain that Texas law “criminalizes” certain conduct. Id. ¶ 105. The Secretary does not prosecute criminal offenses—local officials do. See, e.g., Tex. Gov’t Code § 44.115.
Plaintiffs do not identify any enforcement action the Secretary could take. Instead, they cite the Secretary’s title, “chief elections officer,” ECF 1 ¶ 26 (citing Tex. Elec. Code § 31.001(a)). But that title is not “a delegation of authority to care for any breakdown in the election process.” Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972). The Secretary does not oversee the local officials who do enforce the challenged provisions. Local officials do not report to the Secretary. They are elected or appointed locally, and they are not bound by the Secretary’s advice. In re Stalder, 540 S.W.3d 215, 218 n.9 (Tex. App.—Hous. [1st Dist.] 2018, no pet.) (expressing doubt that a local party chair is bound by the “assistance and advice” provided by the Secretary of State when administering party primary); see
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also United States v. State of Texas, 445 F. Supp. 1245, 1261 (S.D. Tex. 1978) (“[this county official] has, for a number of years (in the face of advice from the Secretary of State) continued to apply . . . an erroneous rule of law.”), aff’d sub nom. Symm v. United States, 439 U.S. 1105 (1979); Ballas v. Symm, 351 F. Supp. 876, 888 (S.D. Tex. 1972), aff’d, 494 F.2d 1167 (5th Cir. 1974) (observing that “the Secretary’s opinions are unenforceable at law and are not binding.”).1
Even if the Secretary could coerce local officials, a federal court could not order her to do so. The Ex parte Young exception is limited to injunctions “prevent[ing] [a state official] from doing that which he has no legal right to do.” Ex parte Young, 209 U.S. at 159. It does not authorize injunctions directing “affirmative action.” Id.; see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949) (noting sovereign immunity applies “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”). 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). II. Plaintiffs Lack Standing
A. Injury in Fact 1. Individual Plaintiffs Allege Speculative Possible Future Injuries, Not Certainly Impending Ones
The Supreme Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Plaintiffs have not plausibly alleged such an injury here.
Plaintiffs do not allege they will be prevented from voting. Instead, they allege they may have trouble voting. Plaintiffs are “concerned that [their] ballot[s] may be rejected because of the Signature
1 Thus, a recent dispute about the interpretation of the Election Code was resolved, not when the Secretary issued advice to local officials, but when the Attorney General filed a petition for a writ of mandamus against local officials charged with approving or rejecting mail-in ballot applications under the Election Code. See In re State of Texas, No. 20-0394, 2020 WL 2759629 (Tex. May 27, 2020).
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Match Requirement.” ECF 1 ¶¶ 13, 14, 16 (emphases added); see also id. ¶¶ 15, 19. They are similarly “concerned about [their] ability to obtain the postage necessary to mail [their] ballot[s].” Id. ¶ 13 (emphasis added); see also id. ¶ 19 (“concerned that he will not have a stamp available”). They have “concerns that [their] ballot[s] may be delayed.” Id. ¶¶ 13, 14, 15, 16 (emphases added); see also id. ¶ 19 (“concerned about the Ballot Collection Deadline”). Plaintiffs allude to a “risk of prosecution” for ballot harvesting without even suggesting the risk is substantial. Id. ¶¶ 15, 19.
Plaintiffs do not allege that these possible future events are certainly impending. Nor could they. In the 2018 elections, only 1.4 percent of mail-in ballots were rejected nationwide.2 And Plaintiffs do not allege that rate is higher in Texas. If rejection of mail-in ballots is relatively rare—and Plaintiffs do not allege otherwise—it forecloses any inference Plaintiffs’ ballots are likely to be rejected, let alone that such rejection is certainly impending. But even if rejection of mail-in ballots were more common, “general data . . . does not establish a substantial risk that Plaintiffs themselves will” be injured. Stringer v. Whitley, 942 F.3d 715, 722 (5th Cir. 2019). “Plaintiff-specific [allegations are] needed before Plaintiffs’ claims can be properly characterized as an attempt to remedy an imminent injury to Plaintiffs instead of a generalized grievance available to all Texans.” Id.
In fact, Plaintiffs’ own allegations undermine any inference that they face imminent injuries from the enforcement of the challenged provisions. Plaintiffs claim that untimely ballots are accepted in some counties but rejected in others. See ECF 1 ¶ 124. They never allege that their ballots will be rejected, or even that they vote in counties that reject untimely ballots. Thus, one cannot conclude that application of the ballot-receipt deadline to Plaintiffs is “certainly impending” without stacking speculation on top of speculation. Clapper, 568 U.S. at 409.
2 U.S. Election Assistance Commission, Election Administration and Voting Survey: 2018 Comprehensive Report at 14, https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf.
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2. Organizational Plaintiffs Lack Associational Standing To assert associational standing on behalf of their members, a plaintiff must have “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”). That requires members who “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, No. 5:11-cv-315, 2014 WL 252024, at *3 (W.D. Tex. Jan. 22, 2014). Organizational Plaintiffs have not alleged facts showing they have such members. They say they have “members and constituents,” ECF 1 ¶ 133, but 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), much less that members “alone finance [their] activities, including the costs of this lawsuit,” Hunt, 432 U.S. at 344.3 Even if Voto Latino has members, it lacks associational standing because it has not “identif[ied] members who have suffered the requisite harm” to establish injuries in fact. Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009); see also NAACP v. City of Kyle, 626 F.3d 233, 237 (5th Cir. 2010) (requiring evidence of “a specific member”); e.g., Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.); Disability Rights Wis., Inc. v. Walworth Cty. Bd. of Supervisors, 522 F.3d 796, 804 (7th Cir. 2008). The NAACP and the Texas Alliance for Retired Americans both identify Individual Plaintiffs as members, but as explained above, none of the Individual Plaintiffs alleges a certainly impending injury. Accordingly, even if these Individual Plaintiffs qualified as “members” for purposes of associational standing, they lack Article III standing the Organizational Plaintiffs could assert. See Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 536 (5th Cir. 2019).
3 Indeed, publicly available information suggests otherwise. See National Redistricting Foundation, Lewis v. Hughs, https://redistrictingfoundation.org/lewis-v-hughs (“The NRF is supporting a group of individual voterplaintiffs and organizations in a new lawsuit challenging Texas’s absentee voting restrictions.”).
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3. None of the Organizational Plaintiffs Has Standing in Its Own Right No Organizational Plaintiff can satisfy injury-in-fact, causation, and redressability in its own right. See City of Kyle, 626 F.3d at 237 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61(1992)). That an organization has an “interest in a problem . . . is not sufficient” for standing, “no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem.” Sierra Club v. Morton, 405 U.S. 727, 739 (1972). Organizational Plaintiffs claim to be injured on the theory that the challenged laws frustrate their missions. Each of their missions relates to voter turnout. See ECF 1 ¶ 21 (“mission of enfranchising and turning out Latinx voters in Texas.”); id. ¶ 23 (mission includes “voter education and registration activities . . . to reach voters and help them to register and eventually, vote”); id. ¶ 25 (mission includes “voter registration, phone banking, and [get out the vote] activities”). The “abstract social interest in maximizing voter turnout . . cannot confer Article III standing.” Fair Elections Ohio v. Husted, 770 F.3d 456, 461 (6th Cir. 2014). And an interest in increasing turnout for particular groups is akin to a “generalized partisan preference[ ],” which the Supreme Court held insufficient to establish Article III standing. Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018). Plaintiff the Texas Alliance for Retired Americans is transparent about this parallel. It bases its standing on the allegation that the challenged statutes “threaten the electoral prospects of its endorsed candidates.” ECF 1 ¶ 25. “An organization’s general interest in its preferred candidates winning as many elections as possible is still a ‘generalized partisan preference[ ]’ that federal courts are ‘not responsible for vindicating.’ ” Jacobson v. Fla. Sec’y of State, 957 F.3d 1193, 1206 (11th Cir. 2020) (quoting Gill, 138 S. Ct. at 1933). Even if they asserted cognizable legal interests, Organizational Plaintiffs would still have to plausibly allege that the challenged statutes make their “activities more difficult” and that there is “a direct conflict between the defendant’s conduct and [their] mission.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996). They have not done so here.
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Organizational Plaintiffs do not plausibly allege that their voter registration and turnout activities are “more difficult.” The challenged statutes do not regulate Organizational Plaintiffs. They regulate voters. Thus, they cannot make Organizational Plaintiffs’ activities more difficult. Organizational standing requires that the challenged statute not just conceivably, but “perceptibly,” impair a plaintiff ’s activities. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). At most, the challenged statutes might make Organizational Plaintiffs’ activities less efficacious. But even that is not plausibly alleged. Plaintiffs do not show that the challenged provisions cause the rejection of a significant number of ballots.
Organizational Plaintiffs also have not alleged a “direct conflict” between the challenged statutes and their missions. Nat’l Treasury Emps. Union, 101 F.3d at 1430. The most Plaintiffs’ claim is that the statutes may make their missions more difficult to achieve. Perhaps that alleges an indirect conflict in which implementation of the challenged statutes “is but an intermediate step” in a speculative chain of events that decreases voter turnout. Common Cause v. Biden, 909 F. Supp. 2d 9, 22 n.8 (D.D.C. 2012) (holding an “intermediate step” does not support standing), aff’d on other grounds, 748 F.3d 1280 (D.C. Cir. 2014). But the challenged statutes are not necessarily inconsistent with Plaintiffs’ missions, so there is no direct conflict.
Plaintiffs also claim to be injured because they have diverted resources to respond to the challenged statutes. See ECF 1 ¶¶ 21, 23–25. But “[n]ot every diversion of resources to counteract [a] defendant’s conduct . . . establishes an injury in fact.” City of Kyle, 626 F.3d at 238. 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, 568 U.S. at 402. 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).
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Here, Plaintiffs have not plausibly alleged that the challenged statutes perceptibly impair their missions, so diverting resources cannot support standing. In other words, Plaintiffs have not plausibly alleged that their “expenditure of funds is truly necessary” rather than “unnecessary alarmism constituting a self-inflicted injury.” Nat’l Treasury Emps. Union, 101 F.3d at 1430.
B. Causation and Redressability Plaintiffs lack standing to sue the Secretary because her actions do not cause their alleged injuries. Whether a mail-in ballot is rejected or counted depends on the actions of local election officials, not the Secretary. And whether anyone is prosecuted for violating the ban on ballot harvesting depends on the actions of local prosecutors, not the Secretary. As a result, Plaintiffs’ asserted injuries are not “fairly traceable to the challenged action of the defendant.” Lujan, 504 U.S. at 560 (quotation and alterations omitted). They are “the result of the independent action of some third party not before the court.” Id. (quotation and alterations omitted). The question is not whether the challenged statutes cause Plaintiffs’ injuries, but whether the Secretary causes their injuries. See Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en banc) (dismissing for lack of standing because courts should not “confuse[ ] the statute’s immediate coercive effect on the plaintiffs with any coercive effect that might be applied by the defendants”). As the Eleventh Circuit recently explained, a plaintiff does not have standing to sue a Secretary of State for the actions of local officials. See Jacobson, 2020 WL 2049076, at *9 (holding that the plaintiffs lacked standing because state “law tasks [local officials], independently of the Secretary, with printing the names of candidates on ballots”). In addition, an injunction against the Secretary would not redress Plaintiffs’ supposed injuries. The Secretary does not enforce the challenged provisions, so enjoining her from such enforcement
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would be meaningless. An injunction against the Secretary would not prevent local officials from continuing to enforce the challenged provisions, as the Election Code requires.4
C. Organizational Plaintiffs Lack Statutory Standing Finally, even if Organizational Plaintiffs had Article III standing, their claims would violate the rule against third-party standing. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127–28 nn.3–4 (2014). Section 1983 provides a cause of action only when the plaintiff suffers “the deprivation of any rights.” 42 U.S.C. § 1983. It does not provide a cause of action to plaintiffs claiming an injury based on a third party’s rights. See Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986) (“[L]ike all persons who claim a deprivation of constitutional rights, [plaintiffs] were required to prove some violation of their personal rights.”). Section 1983 “incorporates . . . the Court’s ‘prudential’ principle that the plaintiff may not assert the rights of third parties,” but it omits the “exceptions” that occasionally overrode the prudential doctrine. David P. Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41, 45. When “[t]he alleged rights at issue” belong to a third party, the plaintiff lacks statutory standing, regardless of whether the plaintiff has suffered his own injury. Danos v. Jones, 652 F.3d 577, 582 (5th Cir. 2011); see also Conn v. Gabbert, 526 U.S. 286, 292–93 (1999) (holding that a lawyer “clearly had no standing” under § 1983 because a plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”).
4 Although OCA-Greater Houston v. Texas found standing to sue the Secretary, its reasoning does not apply here. 867 F.3d 604 (5th Cir. 2017). It was limited to claims of “facial invalidity.” Id. at 613. Here, Plaintiffs bring asapplied challenges. See, e.g., ECF 1 ¶¶ 7, 123. Moreover, OCA distinguished Okpalobi on the ground that Okpalobi involved a challenge to a statute enforced by a private right of action. See 867 F.3d at 613. But like the law at issue in Okpalobi, the statutes challenged here are enforced against local officials through a private right of action. See Tex. Elec. Code §§ 221.003(a), 232.002. So OCA-Greater Houston’s only ground for distinction is no distinction here, and Okpalobi controls. In any event, the extent of the Secretary’s power must be determined on a case-by-case basis. As a result, OCA’s ruling on that issue cannot extend beyond the record and briefing before that court. To the extent it does, the Secretary preserves the argument that it was wrongly decided.
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Organizational Plaintiffs’ claims are based on rights related to voting. But Organizational Plaintiffs do not have a right to vote. As a result, they necessarily assert the rights of third parties and cannot sue under Section 1983. Because this follows from the statute itself, Plaintiffs cannot invoke any prudential exceptions. See Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir. 2016) (“Because Congress specified in the statute who may sue, prudential standing principles do not apply.”); see also Currie, 1981 Sup. Ct. Rev. at 45.
But even if this were an issue of prudential rather than statutory standing, Plaintiffs have not alleged any prudential exception to the bar on third-party standing. They do not have “a ‘close’ relationship with” voters, and voters do not face any “hindrance” to protecting their “own interests,” as the involvement of the Individual Plaintiffs proves. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). III. Plaintiffs Fail to State a Claim
Finally, even if Plaintiffs could overcome these jurisdictional flaws, their case must be dismissed because they fail to plead facts plausibly alleging any violation of their constitutional rights. Plaintiffs challenge four specific aspects of Texas’s mail-in ballot framework: (1) the (supposed) need to buy a stamp, (2) the deadline for returning mail-in ballots, (3) a signature verification requirement, and (4) limits on who many handle ballot envelopes. Because these commonsense procedures do not impinge upon the right to vote and are justified by the State’s needs to conduct orderly and fair elections, Plaintiffs’ claims fail as a matter of law.
A. Plaintiffs’ Right to Vote Is Not Implicated by a Non-Existent “Postage Tax” Plaintiffs allege the supposed need to buy a postage stamp to mail their ballots impinges on their right to vote and imposes a poll tax. That claim fails for at least three independent reasons. There is no “postage tax.” Even if there were a “postage tax,” this Court would lack jurisdiction to enjoin collection of that tax. And such a tax would not abridge the fundamental right to vote.
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1. There is no “postage tax.” Texas law does not require anyone to pay postage, much less a tax, in order to vote. First, any Texas voter who finds voting by mail inconvenient is free to vote in person. See Tex. Elec. Code §§ 11.001, 82.005. Thus, even if postage were a barrier to voting by mail, it would not be a barrier to voting. McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807 (1969) (distinguishing “the right to vote” from the “claimed right to receive absentee ballots.”).
Second, voters who wish to vote “by mail” need not use the postal service to return their ballots. A ballot can be returned by any of three methods: “mail,” “common or contract carrier,” and “in-person delivery by the voter who voted the ballot.” Tex. Elec. Code § 86.006(a). Plaintiffs’ allegations do not address these alternative methods of returning mail-in ballots.
Third, postage is not a barrier to voting by mail. United States Postal Service policy is that “[s]hort-paid and unpaid absentee balloting materials must never be returned to the voter for additional postage.”5 USPS has instructed its employees emphatically:
Employees need to be aware that absentee balloting materials are handled differently than other unpaid or short­paid mailpieces. ABSENTEE BALLOTING MATERIALS ARE NOT TO BE RETURNED FOR ADDITIONAL POSTAGE OR DETAINED! The postage is collected from the election office. Any delay of absentee ballots is a violation of Postal Service policy.6 Fourth, the costs of everyday activities are not “taxes” attributable to the Secretary. For example, a voter may need to buy gasoline or bus fare to get to a polling place, but such everyday expenses are not taxes on voting. They are simply facts of life. So too with postage. The cost of stamps is attributable to the federal government’s control over the postal service, not the Secretary. Fifth, even on Plaintiffs’ theory, Texas law does not require a voter to pay postage. At least one State does require voters to pay the cost of postage themselves. See N.C. Gen. Stat. § 163-231(b)(1)
5 USPS, Requirements and Tips for Handling Official Election Mail and Political Campaign Mail, https:// about.usps.com/postal-bulletin/2014/pb22391/html/cover_003.htm. 6 USPS, Additional Information for Employees, https://about.usps.com/postal-bulletin/2008/html/pb22239 /html/ElectMailkit_012.html.
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(requiring transmission of ballot by mail to be “at the voter’s expense”). But Plaintiffs do not allege Texas law prohibits local governments or private groups from providing envelopes with pre-paid postage. The State simply has not appropriated money to bear the cost itself. Thus, Plaintiffs’ claim should be dismissed because there is no “postage tax.”
2. Even if a requirement to buy a stamp could be considered a “tax,” Congress has precluded this Court from enjoining it. “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. Plaintiffs have not identified any impediment to seeking a remedy in state court. Nor could they. Federal courts “must construe narrowly the ‘plain, speedy and efficient’ exception to the Tax Injunction Act.” California v. Grace Brethren Church, 457 U.S. 393, 413 (1982). Here, Plaintiffs have “a ‘plain,’ ‘speedy,’ and ‘efficient’ remedy because Texas courts would permit [them] to assert [their] federal claims.” McQueen v. Bullock, 907 F.2d 1544, 1547 (5th Cir. 1990). And in any event, any postage is not paid to the Secretary, so it is not clear how the Court could fashion an injunction that would prevent its collection.
3. Assuming Plaintiffs could overcome these hurdles, their claims would still fail as a matter of law. Declining to subsidize postage for mail-in ballots is common and does not implicate, let alone abridge, the right to vote. Numerous States do not pay for voters’ stamps.7 Only “16 states have statutes requiring local election officials to provide return postage for mailed ballots.”8 Plaintiffs’ contention that 34 States are violating the Constitution by failing to subsidize postage is implausible.
The Constitution does not include a freestanding right to vote in whatever manner Plaintiffs deem most convenient. That dooms Plaintiffs’ Anderson-Burdick claim. Considering a challenge to the
7 See, e.g., Colo. Rev. Stat. § 1-7.5-107(4)(b)(II); Fla. Stat. § 101.65; Mich. Comp. Laws § 168.764a; Miss. Code. § 23-15-631(1)(c); N.C. Gen. Stat. § 163-231(b)(1); N.D. Cent. Code § 16.1-07-08(1). 8 National Conference of State Legislatures, States With Postage-Paid Election Mail (Apr. 21, 2020), https://www. ncsl.org/research/elections-and-campaigns/vopp-table-12-states-with-postage-paid-election-mail.aspx.
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limited availability of absentee ballots, the Supreme Court distinguished “the right to vote” from the “claimed right to receive absentee ballots.” McDonald, 394 U.S. at 807. The plaintiffs’ inability 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. Here, the so-called “postage tax” does not prevent anyone from voting. See McDonald, 394 U.S. at 807. Plaintiffs may avoid postage by voting in other ways. See id. at 808. “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.” Crawford, 553 U.S. at 209 (Scalia, J., concurring in the judgment).
Even if the right to vote were implicated, the burden would be de minimis. The cost of firstclass postage is just 55 cents.9 Plaintiffs characterize the burden as “severe” by conflating the burden of complying and the consequence of not complying. Under Anderson-Burdick, the former matters; the latter does not. See Crawford, 553 U.S. at 198 (lead opinion) (analyzing the burden on voters of obtaining identification rather than the consequence of attempting to vote without identification); id. at 209 (Scalia, J., concurring in the judgment) (same). In any event, voters face no consequences from omitting postage—the postal service delivers ballots lacking stamps.
Moreover, to the extent a particular voter has trouble obtaining a stamp, that does not establish that the law imposes heavy burdens. On the contrary, it establishes “no more than the different impacts of the single burden that the law uniformly imposes on all voters.” Id. at 205 (Scalia, J., concurring in the judgment). But the Supreme Court has always analyzed “the magnitude of burdens . . . categorically and [has] not consider[ed] the peculiar circumstances of individual voters or candidates.” Id. at 206.
The State’s interests more than justify this supposed burden. The State has a strong interest in its budget and fiscal responsibility. Although 55 cents is a small amount of money for each voter,
9 USPS, First-Class Mail, https://www.usps.com/ship/first-class-mail.htm.
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paying postage for all mail-in ballots would cost the State hundreds of thousands of dollars in postage expenses for the upcoming general election. Cf. Black Voters Matter Fund v. Raffensperger, No. 1:20-cv1489, 2020 WL 2079240, at *3 (N.D. Ga. Apr. 30, 2020) (denying a motion for a preliminary injunction and noting that “[t]he Secretary of State’s Office estimated the cost for prepaying postage would ‘range between $450,000 and $4.2 million’ for this election at a time of other significant state fiscal concerns.”). Also, setting up a system to provide postage-paid mail-in ballots would entail administrative costs and divert government resources from other important tasks during a time when the State’s resources are already stretched. These are weighty interests. “Protecting the public fisc ranks high among the aims of any legitimate government.” Valot v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1227 (6th Cir. 1997).
More fundamentally, constitutional provisions designed to safeguard negative liberty cannot be read to require governmental subsidies. A constitutional right to be free from governmental interference does not create “a constitutional entitlement to the financial resources to avail [one]self of the full range of protected choices.” Harris v. McRae, 448 U.S. 297, 316 (1980). A government “need not remove [obstacles] not of its own creation,” including “[i]ndigency.” Id. Here, the Secretary is not responsible for the cost of a stamp, much less anyone’s inability to procure one.
4. Plaintiffs’ poll tax claim fails because Texas does not have a poll tax. Even the most expansive definitions of “poll tax” require that it be “deliberately imposed by the State.” Veasey v. Perry, 135 S. Ct. 9, 12 (2014) (Ginsburg, J., dissenting). Plaintiffs do not allege that the cost of a stamp is “deliberately imposed by the State.” And voters buying stamps do not contribute to the state treasury. As the Fifth Circuit has explained “[t]he indirect cost on” certain voters “does not constitute a poll tax.” Veasey v. Abbott, 830 F.3d 216, 266 (5th Cir. 2016) (en banc).
Moreover, a poll tax claim requires that the defendant have acted with “willful intent.” Bruce v. City of Colo. Springs, 971 P.2d 679, 684–85 (Colo. App. 1998) (rejecting a poll tax claim). Thus, “even if
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a voter was prevented from exercising his or her right to vote because of the lack of a stamp, such action does not constitute an unconstitutional poll tax in the absence of a willful intent to deprive the voter of the right by imposing such requirement.” Id. at 685. Because Plaintiffs have not alleged any such intent here, their claim fails.
B. The Deadline for Returning Ballots Is Reasonable and Constitutional Equally without merit is Plaintiffs’ claim that their rights are impinged by the imposition of reasonable deadlines for delivery of mail-in ballots. Texas law has long provided that “a marked ballot voted by mail must arrive . . . before the time the polls are required to close on election day.” Tex. Elec. Code § 86.007(a)(1). In 2017, the Legislature created an exception. HB 1151 relaxed the ballotreceipt deadline by allowing a mail-in ballot postmarked “not later than 7 p.m. at the location of the election on election day” to be counted if it arrives “not later than 5 p.m. on the day after election day.” Tex. Elec. Code § 86.007(a)(2). Nationwide, counting ballots that arrive after Election Day is relatively rare. “The most common state deadline for election officials to receive absentee or mail ballots is on Election Day when the polls close.”10 More than 30 States refuse to accept ballots arriving after that point. But some States have even earlier deadlines. See, e.g., Ala. Code § 17-11-18(a). Indeed, the other two States in this Circuit require most mail-in ballots to arrive the day before Election Day. See La. Stat. § 18:1308(C); Miss. Code. § 23-15-637. Texas’s ballot-receipt deadline is relatively lenient, but it serves an important purpose. It gives local officials time to process and count ballots. Before a ballot can be counted, local officials must “determine whether to accept” it. Tex. Elec. Code § 87.041(a). In doing so, local officials assess seven criteria, such as whether “the voter is registered to vote.” Id. § 87.041(b). They can determine whether
10 National Conference of State Legislatures, Receipt and Postmark Deadlines for Absentee Ballots (May 14, 2020), https://www.ncsl.org/research/elections-and-campaigns/vopp-table-11-receipt-and-postmark-deadlines-forabsentee-ballots.aspx.
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to accept a mail-in ballot “at any time after the ballots are delivered.” Id. § 87.0241(a). That means in Texas, as in “many states, processing of absentee ballots can begin before they are actually counted.” That “permit[s] election officials to do a lot of the work ahead of time,” meaning “the counting process on Election Day (and election results reporting) are quicker.”11 The ballot-return deadline ensures that local officials have time to determine the legitimacy of ballots cast by mail.
The ballot-return deadline also allows local officials to begin counting mail-in ballots earlier. Local officials may count mail-in ballots as soon as “the polls open on election day” or, in populous counties, at “the end of the period for early voting by personal appearance.” Tex. Elec. Code § 87.0241(b). Mail-in ballots “that are received by 7:00 p.m. on Election Day” (the traditional deadline) will “be counted on election night.”12 Texas’s approach makes sense. Elections must end at some point, so there must be a ballot-receipt deadline.
Plaintiffs bring two challenges to the ballot-receipt deadline: an Anderson-Burdick claim and an equal protection claim. ECF 1 ¶¶ 116–17, 124. Neither can succeed. As discussed above, Plaintiffs’ Anderson-Burdick claim fails because limits on voting by mail do not implicate the right to vote. Moreover, Plaintiffs’ Anderson-Burdick claim rests on Plaintiffs’ mistaken impression that “Texas has no meaningful need for its” ballot-receipt deadline because mail-in ballots “will be put in a box to be counted five days later at the earliest.” ECF 1 ¶¶ 93–94. But as explained above, mail-in ballots do not simply “sit in their box waiting to be counted.” ECF 1 ¶ 94. On the contrary, local officials process them to ensure they reflect a lawful vote. Plaintiffs do not acknowledge, let alone rebut, Texas’s weighty interest in facilitating that process. Also, mail-in ballots can be counted well before Plaintiffs suggest. See ECF 1 ¶ 117. As addressed above, most (if not all) mail-in ballots must be counted on
11 National Conference of State Legislatures, When Absentee/Mail Ballot Processing and Counting Can Begin (Apr. 17, 2020), https://www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-absentee-mailballot-processing-and-counting-can-begin.aspx. 12 Texas Secretary of State, Election Advisory No. 2018-02 (Jan. 5, 2018), https://www.sos.state.tx.us/elections /laws/advisory2018-02.shtml (emphasis removed).
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Election Day.13 Thus, Texas has good reason for setting a ballot-receipt deadline. The sooner ballots are received, the sooner they can be processed and counted.
That is why a similar challenge to South Carolina’s ballot-receipt deadline recently failed. South Carolina requires that mail-in ballots be received by 7:00 p.m. on Election Day, earlier than Texas requires. The court held that “South Carolina’s generally applicable deadline for receipt of absentee ballots is constitutional because it imposes only a minimal burden, if any, on [the] Plaintiffs’ right to vote.” Thomas v. Andino, No. 3:20-cv-1552, 2020 WL 2617329, at *26 (D.S.C. May 25, 2020). “[V]oters who fail to get their vote in early cannot blame South Carolina law for their inability to vote; they must blame ‘their own failure to take timely steps to effect their enrollment.” Id. (quoting Rosario v. Rockefeller, 410 U.S. 752, 758 (1973)); see Mays v. LaRose, 951 F.3d 775, 792 (6th Cir. 2020) (upholding “Ohio’s deadline of noon, three days before Election Day” for requesting a mail-in ballot because it “is nondiscriminatory”).
Plaintiffs mischaracterize the Supreme Court’s recent opinion in Republican National Committee v. Democratic National Committee, 140 S. Ct. 1205 (2020). They claim the Court’s “holding” was that “all nine Justices unanimously agreed that it was appropriate to extend Wisconsin’s Ballot Receipt Deadline by an additional six days.” ECF 1 ¶ 91. In reality, the Court did not consider that issue; the six-day extension was “not challenged in [the Supreme] Court” due to the limited scope of the emergency stay application. RNC, 140 S. Ct. at 1206; see Thomas, 2020 WL 2617329, at *27 n.27.
Plaintiffs also argue that some voters will not be aware of the deadline. See ECF 1 ¶ 89. Plaintiffs’ fear is speculative and unfounded. “All citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130 (1985). “It is reasonable to expect a voter, who is voting
13 Plaintiffs make much of the idea that ballots received after Election Day may not be counted until later, citing a PowerPoint presentation from one of the Secretary’s staff attorneys. See ECF 1 ¶ 93. That is irrelevant. The ballot-receipt deadline allows earlier processing and earlier counting (if needed), but it also allows local officials to more quickly determine whether yet-to-be-counted mail-in ballots are numerous enough to affect the outcome of an election.
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by absentee ballot, no matter the reason, to familiarize themselves with the rules governing that procedure—especially when those procedures are provided.” Thomas, 2020 WL 2617329, at *25 n.25.
Plaintiffs contend that “[t]he Ballot Receipt Deadline is misleading” because it “suggests to voters that it is possible to mail a ballot at 7:00 p.m. on election day such that the county receives it by 5:00 p.m. the next day.” ECF 1 ¶ 78. Plaintiffs allege that “that First-Class mail typically takes” longer than that. Id. The statute does not suggest anything about delivery times, but even if it did, it would be immaterial. The ballot-receipt deadline is not tied to first-class mail. As discussed above, voters are permitted to use other, faster methods of delivery. Moreover, the difference between the ballot-postmark deadline and the ballot-receipt deadline is a product of HB 1151—a bill that the Texas legislature passed unanimously.14 The Texas Democratic Party twice testified in its favor.15 There is no reason to believe anyone is confused by the ballot-receipt deadline. And even if Plaintiffs had plausibly alleged such confusion, it would not amount to a “burden” under the Anderson-Burdick framework, much less a burden attributable to the Secretary.
Finally, Plaintiffs appear to complain that the mail takes too long. See, e.g., ECF 1 ¶ 81. Of course, there is nothing the Secretary can do about “the vagaries of a postal service operating under a budget crisis during a global pandemic.” Id. ¶ 92. But the State has provided voters with numerous options for voting that do not depend on the mail, including delivering a “mail-in” ballot through other means. See, e.g., Tex. Elec. Code § 86.006.
Plaintiffs’ equal protection claim has no merit. They argue that “[t]he Ballot Receipt Deadline, as applied, treats Texans different[ly] depending on where they live” because “the rate of ballots
14 85th Leg., Senate Journal, at 2598 (May 23, 2017), https://journals.senate.texas.gov/sjrnl/85r/pdf/85RSJ0523-F.PDF#page=24 (showing HB 1151 passed the Senate with “Yeas 31” and “Nays 0”); 85th Leg., House Journal, at 3417–18 (May 12, 2017), https://journals.house.texas.gov/hjrnl/85r/pdf/85RDAY70FINAL.PDF #page=15 (showing HB 1151 passed the House with “143 Yeas” and “0 Nays”). 15 Senate State Affairs Committee, Witness List for HB 1151 (May 19, 2017), https://capitol.texas.gov/tlodocs/ 85R/witlistbill/pdf/HB01151S.pdf#navpanes=0; House Elections Committee, Witness List for HB 1151 (Mar. 20, 2017), https://capitol.texas.gov/tlodocs/85R/witlistbill/pdf/HB01151H.pdf#navpanes=0.
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rejected [based on the deadline] differs between counties.” ECF 1 ¶ 123. That shows nothing. That different counties have different rejection rates may be “consistent with” Plaintiffs’ theory that “the levels of strictness with which counties enforce the Ballot Receipt Deadline vary,” but it is “just as much in line with” the alternative theory that the rates at which counties receive untimely ballots vary. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007). Plaintiffs’ theory is not plausible.
Even if Plaintiffs could plausibly allege that local officials apply the ballot-receipt deadline differently, it would not violate the Equal Protection Clause. Plaintiffs rely on Bush v. Gore, 531 U.S. 98 (2000), but the highly unusual circumstances giving rise to that case are not present here. See id. at 109 (“Our consideration is limited to the present circumstances . . . .”). The Court expressly distinguished situations in which “local entities” have “develop[ed] different systems for implementing elections.” Id. The Court was concerned only with “a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.” Id.
At best, Plaintiffs allege “discrimination on the basis of geography.” ECF 1 ¶ 124. That triggers no more than rational-basis review. See, e.g., Phillips v. Snyder, 836 F.3d 707, 719 (6th Cir. 2016); Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 363 (D.C. Cir. 2007); Ingram v. United States, 296 F. Supp. 3d 1076, 1083–84 (N.D. Iowa 2017), aff’d on other grounds, 932 F.3d 1084 (8th Cir. 2019). Of course, Texas’s basis for delegating enforcement of the ballot-receipt deadline to local officials is more than merely rational. They are the ones who receive, process, and count the ballots. Plaintiffs do not allege otherwise, let alone plead facts that could plausibly entitle them to relief.
C. Failing to Verify Signatures Would Invite Election Fraud Plaintiffs also do not plausibly allege how Texas’s signature-verification requirement infringes their right to vote. “There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.” Crawford, 553 U.S. at 196 (plurality). The State “indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. S.F. Cty. Democratic
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Cent. Comm., 489 U.S. 214, 231 (1989). This concern is perhaps most compelling in the context of mail-in ballots. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (acknowledging “the State’s compelling interest in preventing voter fraud”); Veasey v. Abbott, 830 F.3d 216, 307 n.46 (5th Cir. 2016) (en banc) (Jones, J., concurring in part and dissenting in part) (“[T]he greatest fraud risk exists when unauthorized persons direct an elderly, immobile voter’s choices on a mail-in ballot”); Crawford, 553 U.S. at 225 (Souter, J., dissenting) (“absentee-ballot fraud . . . is a documented problem”); Griffin v. Roupas, 385 F.3d 1128, 1130–31 (7th Cir. 2004) (“Voting fraud . . . is facilitated by absentee voting.”).
Signature verification is “[t]he most common method to verify that absentee ballots are coming from the intended voter.”16 A wide variety of States follow this approach. See, e.g., Haw. Rev. Stat. § 15-9(c)(2); Me. Rev. Stat. tit. 21-A, §§ 756, 759; N.J. Stat. § 19:63-17. So too in Texas, where an early voting ballot board (“EVBB”) is created “in each election to process early voting results. See Tex. Elec. Code §§ 87.001, .002-.004, .021-.041. A mail-in ballot “may only be accepted if,” among other things, “the carrier envelope certificate is properly executed [and] neither the voter’s signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness.” Id. § 87.041(b)(1)-(2).17 In making this determination, the EVBB “may also compare the signatures with any two or more signatures of the voter made within the preceding six years and on file with the county clerk or voter registrar[.]” Id. § 87.041(e); see also id. § 87.041(f) (military and overseas voters).
Texas law further authorizes local officials to appoint a signature verification committee (“SVC”). See Tex. Elec Code § 87.027. The SVC “compare[s] the signature on” the envelope containing the mail-in ballot to “the signature on the voter’s ballot application,” id. § 87.027(i), and
16 National Conference of State Legislatures, Verification of Absentee Ballots (Jan. 21, 2020), https://www.ncsl. org/research/elections-and-campaigns/verification-of-absentee-ballots.aspx. 17 See also Tex. Elec. Code § 1.011(a) (providing that any signature required under the Election Code “may be signed for the person by a witness . . . if the person required to sign cannot do so because of a physical disability or illiteracy.”).
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“may also compare the signatures with any two or more signatures of the voter made within the preceding six years and on file with the county clerk or voter registrar.” Id. With that information, the committee votes on “whether the signatures are those of the voter.” Id. A ballot is accepted unless “a majority vote of the committee’s membership” concludes the signatures do not match. Id. According to the handbook Plaintiffs cite in their complaint, “[t]he standard should be whether the two signatures could have been made by the same person.”18 Even then, however, the county EVBB can override a signature committee’s decision to reject a ballot “by a majority vote of the board’s membership.” Id. § 87.027(j).
There are also opportunities for judicial review. “If a county election officer . . . determines a ballot was incorrectly rejected or accepted by the early voting ballot board before the time set for convening the canvassing authority, the county election officer may petition a district court for injunctive or other relief as the court determines appropriate.” Tex. Elec. Code § 87.127(a). In addition, the improper rejection of mail-in ballots could support an election contest. Cf. Reese v. Duncan, 80 S.W.3d 650, 660–62 (Tex. App.—Dallas 2002, pet. denied) (affirming an order for a new election because mail-in ballots with mismatching signatures had been counted).
Plaintiffs’ challenges all fail. 1. Plaintiffs complain that the signature-verification process violates the right to vote under Anderson-Burdick. See ECF 1 ¶ 118–19. As an initial matter, Anderson-Burdick is inapplicable for the same reasons explained above. See McDonald, 394 U.S. at 807 (distinguishing “the right to vote” from the “claimed right to receive absentee ballots”). But even if Anderson-Burdick applied, the signatureverification process is justified by the State’s interest in preventing votes from being stolen. Neither of Plaintiffs’ contrary theories can succeed.
18 Texas Secretary of State, Early Voting Ballot Board & Signature Verification Committee: Handbook for Election Judges and Clerks 2020 at 35, https://www.sos.state.tx.us/elections/forms/ballot-board-handbook.pdf, cited in ECF 1 ¶ 97; see also id. at 37.
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First, Plaintiffs complain that the members of the SVC and the EVBB are not necessarily handwriting experts. See ECF 1 ¶ 97. But Plaintiffs do not allege anything about the members of any particular EVBB or SVC—indeed, those serving during the November 2020 election may not have been selected yet. See Tex. Elec. Code § 87.027(c). Regardless, determining “whether the two signatures could have been made by the same person” is well within the skills of a layman. For example, cashiers compare the signature on the back of a credit card to the signature on a receipt. And in any event, voters are well informed of the signature requirements. Tex. Elec. Code §§ 87.041(b)(2); 84.011(a)(4)(B), 87.041(e).
Thus, all an individual must do for their mail-in ballot to be counted is provide recognizable signatures, or, if they are unable to do that, have a witness sign the ballot application and carrier envelope. These burdens are no weightier than those for in-person voters, who must travel to a designated polling place on Election Day. The Supreme Court has held that similar laws, requiring nominal effort of everyone, are not severe burdens on the right to vote. See, e.g., Crawford, 553 U.S. at 198 (plurality) (explaining “the inconvenience of” obtaining a photo ID “does not qualify as a substantial burden on the right to vote”).
Second, Plaintiffs complain that “the county need only notify the voter of their mail-in ballot’s rejection due to signature mismatch within 10 days after the election, at which point such notification is meaningless.” ECF 1 ¶ 103 (citing Tex. Elec. Code § 87.0431). But Plaintiffs do not allege that local officials in fact take that long to provide notice. Nothing in state law prevents local officials from providing pre–Election Day notice to voters who submit their ballots prior to Election Day, and the Secretary has “recommend[ed] mailing notices of rejected ballots to affected voters as soon as possible.”19 Nothing in Plaintiffs’ complaint suggests they will have their mail-in ballots rejected
19 Texas Secretary of State, Election Advisory No. 2020-07 (Feb. 11, 2020), https://www.sos.texas.gov/ elections/laws/advisory2020-07.shtml (emphasis removed).
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without such notice. Nor have they alleged that any burden from an alleged lack of notice will be felt “categorically” as opposed to in “the peculiar circumstances of individual voters.” Crawford, 553 U.S. at 206 (Scalia, J., concurring in the judgment).
Even if local officials provided no notice—which Plaintiffs do not allege—it would not violate Anderson-Burdick. In Oregon, “county elections officials do not notify voters after rejecting nonmatching signatures” on referenda petitions. Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008). But the Ninth Circuit found that “the absence of notice and an opportunity to rehabilitate rejected signatures imposes only a minimal burden on plaintiffs’ rights” in light of the review process local officials used. Id. That review process is very similar to Texas’s. See id. (noting “that higher county elections authorities review all signatures that are initially rejected”).
To the extent Plaintiffs argue all counties should be required, on pain of contempt of court, to notify each voter of a rejected ballot before Election Day, that has the potential to impose a significant burden on local officials. Flexibility is important. If there is a sharp increase in mail-in ballots in an upcoming election, requiring officials to provide pre–Election Day notice for all lastminute ballots may be unworkable. Plaintiffs do not allege otherwise.
Plaintiffs rely on a split decision denying a stay in a challenge to Florida’s signature-verification requirements, see ECF 1 ¶ 119, but that decision is neither precedential nor persuasive. Indeed, the only reason it has not been vacated is because the Eleventh Circuit decided “the necessarily tentative and preliminary nature of a stay-panel opinion precludes the opinion from having an effect outside that case.” Democratic Exec. Comm. of Fla. v. NRSC, 950 F.3d 790, 795 (11th Cir. 2020).
2. Plaintiffs next allege that the signature-verification process violates the Equal Protection Clause. See ECF 1 ¶ 124. They rely once again on Bush v. Gore, but it does not apply here for the reasons explained above. And contrary to Plaintiffs’ assertion, local election officials employ a uniform standard: “whether the signatures are those of the voter.” Tex. Elec. Code §§ 87.027(i), 87.041(e). That
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is akin to the Oregon law upheld in Lemons. “[C]ounty elections officials use a uniform standard: whether a referendum petition signature matches the [signer’s previous] signature.” Lemons, 538 F.3d at 1105. “[T]his standard is uniform and specific enough to ensure equal treatment of voters.” Id.
Plaintiffs further contend the signature-verification process “discriminates on the basis of age and disability, as young voters, elderly voters, and disabled voters are more likely to have changing signatures.” ECF 1 ¶ 124. But Plaintiffs do not even assert, let alone plausibly allege, discriminatory intent. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). The State’s interests explained above provide more than a rational basis. Any voter who cannot provide a signature by reason of disability may have a witness sign on his behalf—and such ballots cannot be rejected based on signature mismatch. See Tex. Elec. Code § 87.041(b)(1)-(2), (e). Plaintiffs ignore these provisions entirely.
3. Plaintiffs also bring a due process claim. See ECF 1 ¶ 127. That claim cannot succeed in this Circuit. The Fifth Circuit has held that “the right to vote for a candidate for a state office . . . is not a denial of a right of property or liberty secured by the due process clause.” Johnson v. Hood, 430 F.2d 610, 612 (5th Cir. 1970). The same reasoning applies to federal elections. The Ninth Circuit rejected a similar claim in Lemons, 538 F.3d at 1104–05. Here, as in Oregon, “the verification process is already weighted in favor of accepting questionable signatures, in part because only rejected signatures are subject to more than one level of review by county elections officials.” Id. at 1105. Because Texas already has extensive procedural safeguards, “[t]he value of additional procedural safeguards . . . is negligible.” Id.
D. Ballot Harvesting Is Not a Constitutional Right Finally, there is no constitutional right for a voter to entrust his or her ballot to the person of his or her choosing. Plaintiffs claim Texas law “imposes a severe burden on the right to vote because it will effectively disenfranchise voters who require assistance in returning their mail-in ballots.” ECF 1 ¶ 120. That is contradicted by the Election Code. Texas law authorizes six different categories of
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people to assist a voter with delivering a mail-in ballot: (1) a family member, (2) someone “physically living in the same dwelling as the voter,” (3) “an early voting clerk or a deputy early voting clerk,” (4) an official assistant under Section 86.010, (5) a postal worker, or (6) “a common or contract carrier.” Tex. Elec. Code § 86.006(f)(1)–(6).
Plaintiffs think that list is not sufficient, see ECF 1 ¶ 105–11, but Texas has good reason not to permit ballot harvesting by strangers. Allowing strangers to handle absentee ballots can fundamentally undermine the integrity of an election. For example, in a 2003 election:
one of the candidates paid supporters to stand near polling places and encourage voters—especially those who were poor, infirm, or spoke little English—to vote absentee. The supporters asked the voters to contact them when they received their ballots; the supporters then “assisted” the voter in filling out the ballot. Crawford., 553 U.S. at 195–96 n.13 (plurality) (describing Pabey v. Pastrick, 816 N.E.2d 1138, 1151 (Ind. 2004)). This fraud was so widespread that it was “impossible to determine the candidate who received the highest number of legal votes cast in the election.” Id. Many States have stricter limits than Texas does.20 Indeed, in Alabama, no one is authorized to assist a voter with a mail-in ballot. See Ala. Code § 17-11-9. In support of their Anderson-Burdick claim, Plaintiffs further allege that the limitation on ballot harvesting is unnecessary because “other Texas laws already criminalize any exercise of undue influence or voting fraud.” ECF 1 ¶ 120. But States often adopt simple prophylactic rules to avoid the need for criminal prosecution. For example, a State may ban the possession of illegal drugs, even if the true evil to be avoided is the use of those drugs, because the two activities are related but the latter is
20 See, e.g., Ga. Code § 21-2-385 (listing only family members and “an individual residing in the household,” unless the voter is disabled); Mass. Gen. Laws ch. 54, § 92(a) (“a family member”); Mich. Comp. Laws § 168.764a (“a member of the immediate family of the voter . . . or a person residing in the voter’s household”); Mo. Stat. § 115.291(2) (“a relative of the voter who is within the second degree of consanguinity or affinity, by mail or registered carrier or by a team of deputy election authorities”); Ohio Rev. Code Ann. § 3509.05 (listing family members only); Nev. Rev. Stat. § 293.353(4) (“a member of the family of that voter”); N.H. Rev. Stat. § 657:17(II)(A) (listing family members only, for most voters); N.M. Stat. § 1-6-10.1(A) (“caregiver” or “immediate family”); N.C. Gen. Stat. § 163-231(b)(1) (“near relative or verifiable legal guardian”).
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Case 5:20-cv-00577-OLG Document 17 Filed 06/03/20 Page 29 of 30 more difficult to prove. Moreover, this minor limitation on voting by mail does not implicate the right to vote underlying. Anderson-Burdick. See McDonald, 394 U.S. at 807.
Plaintiffs’ complaint suggests they intend to bring a due process challenge to the prohibition on ballot harvesting. See ECF 1 at 39 (describing the third cause of action as a “Violation of Procedural Due Process” based on the “Voter Assistance Ban”). But that section of the complaint does not include any allegations about the prohibition on ballot harvesting. See id. ¶¶ 125–27. To the extent Plaintiffs purport to bring a due process claim, it should be dismissed due to the lack of a protected liberty interest and because the procedures are adequate. See Johnson, 430 F.2d at 612. Alternatively, the Secretary moves for a more definite statement. The Secretary “cannot reasonably prepare a response” to such a claim, Fed. R. Civ. P. 12(e), because the complaint does not “provide[ ] sufficient notice,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
CONCLUSION The Secretary respectfully requests that the Court dismiss Plaintiffs’ Complaint.
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Date: June 3, 2020
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General

Respectfully submitted.
PATRICK K. SWEETEN Associate Deputy for Special Litigation
/s/William T. Thompson WILLIAM T. THOMPSON Special Counsel
KATHLEEN HUNKER Special Counsel
OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC-009) Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 patrick.sweeten@oag.texas.gov will.thompson@oag.texas.gov kathleen.hunker@oag.texas.gov

COUNSEL FOR THE TEXAS SECRETARY OF STATE

CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on June 3, 2020, and that all counsel of record were served by CM/ECF.
/s/William T. Thompson WILLIAM T. THOMPSON

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 Case 5:20-cv-00577-OLG Document 19 Filed 06/17/20 Page 1 of 31

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

LINDA JANN LEWIS, MADISON LEE, ELLEN SWEETS, BENNY ALEXANDER, GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, AND TEXAS ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs,
v.
RUTH HUGHS, in her official capacity as the Texas Secretary of State,
Defendant.

Civil Action No. 5:20-cv-00577-OLG
Related to Gloria et al. v. Hughs et al., No. 5:20-cv-00527

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

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TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................ ii INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 3
Sovereign immunity does not bar Plaintiffs’ claims........................................................... 3 All Plaintiffs have standing................................................................................................. 5 1. All Plaintiffs allege sufficient injury to confer standing................................................. 5 a. The Voter Plaintiffs’ alleged injuries are not speculative........................................... 6 b. The Organizational Plaintiffs face associational injury. ............................................. 8 c. The Organizational Plaintiffs face direct organizational injury.................................. 9 2. Plaintiffs’ claims are caused and redressable by Defendant. ........................................ 12 3. The Organizational Plaintiffs have statutory standing.................................................. 14 Plaintiffs’ Complaint validly states four claims for relief. ............................................... 16 1. Anderson-Burdick claim (all four Vote By Mail Restrictions) ..................................... 16 2. Equal protection claim (Ballot Receipt Deadline & Signature Match) ........................ 24 3. Procedural due process claim (Signature Match) ......................................................... 25 4. Poll tax claim (Postage Tax) ......................................................................................... 27 CONCLUSION............................................................................................................................. 27
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INTRODUCTION The Secretary takes the remarkable position—during a once-in-a-century pandemic that has made voting by mail the primary means of accessing the franchise—that voting by mail is simply a luxury; Texas’s state officials have no responsibility to ensure that voters can effectively cast mail ballots; and even if those officials could help, this Court has no power to make them do so. Not only this, the Secretary argues that the Court should dismiss Plaintiffs’ claims on the pleadings without Plaintiffs having the opportunity to have their claims heard. These arguments ignore reality and are directly contrary to binding precedent. The Constitution does not allow Texas to operate a vote-by-mail regime that is guaranteed to burden and disenfranchise an untold number of voters, particularly in the coming election in which the severity of the burden of the Postage Tax, Ballot Receipt Deadline, Signature Match Requirement, and Voter Assistance Ban (collectively, the “Vote By Mail Restrictions”) will be exacerbated and impact a broader number of voters as many shift to mail voting due to COVID-19. Notably, the Secretary’s Motion outright ignores that ongoing health crisis. Nowhere in the Motion do the words “COVID,” “health,” or “virus” appear. The single mention of the word “pandemic” is a quote from Plaintiffs’ Complaint. Plaintiffs wish they could—as the Secretary seems to try to do—will the current pandemic away. But they cannot. And while it is not the basis for Plaintiffs’ claims, it provides important factual context, outside of which Plaintiffs’ claims cannot be accurately apprised. The Secretary’s decision to ignore that context is reason alone to look skeptically on her motion to dismiss. The Secretary lodges both jurisdictional objections and arguments that Plaintiffs have failed to plead plausible claims. The Secretary is wrong on both counts. First, the Secretary’s argument that sovereign immunity bars claims like Plaintiffs’ has been rejected by the Fifth Circuit applying the Ex parte Young doctrine. Second, all Plaintiffs have standing. The Secretary’s argument that Plaintiffs Linda Jann Lewis, Madison Lee, Ellen Sweets, Benny Alexander, and
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George Morgan (collectively, “Voter Plaintiffs”) face injuries that are too speculative ignores the applicable standard of review and facts pled in Plaintiffs’ complaint that are supported by declarations attached to this opposition. Voto Latino, the Texas State Conference of the National Association for the Advancement of Colored People (“NAACP”), and the Texas Alliance for Retired Americans (the “Alliance”) (collectively, “Organizational Plaintiffs”) possess Article III and statutory standing to prosecute this suit under theories of both organizational and associational standing. The Secretary’s half-hearted arguments to the contrary fail to withstand even cursory examination, and most were recently dispensed with by this Court in an order denying a motion to dismiss in Richardson v. Hancock, Case No. 5:19-cv-00963-OLG, (W.D. Tex. Dec. 23, 2019) at ECF No. 41 (“Richardson Order) (Ex. A at Appx. 1-33).
And finally, although the Secretary argues that Plaintiffs do not state a valid claim for relief under their four causes of action—(1) undue burden on the right to vote, (2) violation of equal protection, (3) violation of procedural due process, and (4) impermissible poll tax—the Secretary is wrong at every turn. Plaintiffs do not have to prove their case in a Complaint. They need only plead plausible claims for relief. Here, Plaintiffs have alleged facts, which must be accepted as true, demonstrating that the Vote By Mail Restrictions challenged here impose a heavy burden on the right to vote that far outweighs any purported State interest. This alone is fatal to the Secretary’s arguments at the pleadings stage. But rather than accept the facts as alleged, the Secretary argues them, claiming that because she says any burden is minimal, Plaintiffs are not entitled to substantive judicial review of their claims. This is not how Rule 12(b)(6) works, and the risk of disenfranchising thousands of Texans in the midst of a global pandemic is anything but minimal. Plaintiffs’ Complaint sets forth more than sufficient grounds for this Court to proceed to the merits. The Secretary’s motion fails in its entirety and should be denied.
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ARGUMENT Sovereign immunity does not bar Plaintiffs’ claims. The Secretary argues, ignoring controlling legal authority, that sovereign immunity bars Plaintiffs’ claims. She is wrong for the reasons most recently discussed in Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 2982937, at *6-8 (5th Cir. June 4, 2020) (“TDP”).1 Under Ex parte Young, sovereign immunity poses no bar to plaintiffs who (1) seek prospective injunctive relief (2) against a state actor who has “some connection” to the challenged law’s implementation and enforcement. K.P. v. LeBlanc, 627 F.3d 115, 124-25 (5th Cir. 2010). Plaintiffs seek prospective injunctive relief, so the question is whether the Secretary has “some connection” to the Vote By Mail Restrictions. The Secretary argues she does not. Nonsense. The Ex parte Young doctrine provides an exception to sovereign immunity when the defendant enforces a challenged statute “by virtue of his office.” Id. at 124. That is precisely the case here. The Secretary focuses solely on the fact she does not personally provide ballot carrier envelopes, reject mail ballots for signature or delivery date issues, or prosecute individuals for voter assistance.2 See Dkt. 17 at 2-3. This misapplies Ex parte Young and ignores binding precedent. Plaintiffs establish a sufficient “connection to the enforcement” when the official “effectively ensures the [statutory] scheme is enforced” or engages in actions, per the statute, that constrain the plaintiffs. Air Evac EMS v. Texas, Dept. Of Ins., 851 F.3d 507, 519 (5th Cir. 2017).
1 TDP considered a stay of a preliminary injunction pending appeal, so it did not rule on the substance of the parties’ arguments, but instead opined on the likelihood of their success. TDP, 2020 WL 2982937, at *8. 2 Worth noting is the troubling implications of the Secretary’s argument. Although county election officials have no power to ignore the statutory provisions challenged here, the Secretary effectively argues that no one can challenge state law without joining 254 counties in a lawsuit. This is not required, and would be a recipe for unmanageable proceedings and a grossly inconvenient and unnecessary burden on county officials hauled into court far from their local jurisdiction. The standing doctrine ensures that the Court is resolving real disputes between parties. It does not operate as a roadblock to be deployed by a State that does not wish to have its laws challenged.
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Texas Election Code § 31.003 unequivocally states that the Secretary “shall obtain and maintain uniformity in the application, operation, and interpretation of [the Election Code] and of the election laws outside th[e] code.” Although the Secretary attempts to distance herself from her statutory duty to ensure uniform enforcement of the election code, the statute’s use of the word “shall” makes clear these duties are mandatory. See Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001). The Secretary therefore has the requisite connection to the challenged Vote By Mail Restrictions for Ex arte Young to apply. See TDP, 2020 WL 2982937, at *8 (“[O]ur precedent suggests that the Secretary of State bears a sufficient connection to the enforcement of the Texas Election Code’s vote-by-mail provisions to . . . suggest[] that Young is satisfied.”).
Finally, the Secretary’s attempt to exclude “injunctions directing ‘affirmative action’” from Ex parte Young’s reach is plainly wrong. Many cases have applied the doctrine in suits imposing mandatory injunctions.3 “Under Ex parte Young, ‘a federal court, consistent with the Eleventh Amendment, 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) (quoting Quern v. Jordan, 440 U.S. 332, 337 (1979)), including by undertaking affirmative obligations.4 The Secretary ignores this binding precedent in favor of cherrypicked quotes from cases that did
3 See, e.g., Verizon Md., Inc. v. Public Serv. Comm’n of Maryland, 535 U.S. 635, 640; Air Evac EMS, 851 F.3d at 521; Green Valley Special Util. Dist. v. Walker, 324 F.R.D. 176, 182 (W.D. Tex. 2018); Hall v. Louisiana, 983 F. Supp. 2d 820, 835 (M.D. La. 2013). 4 See, e.g., Milliken v. Bradley, 433 U.S. 267, 288-90 (1977) (rejecting state’s assertion of sovereign immunity concerning requirement that state pay for future educational components of relief); Thomas ex rel. D.M.T. v. School Bd. St. Martin Parish, 756 F.3d 380, 387-88 (5th Cir. 2014) (noting school board “remained subject to affirmative obligations” by permanent injunction issued by court to remedy constitutional harms).
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not apply the rule she advances.5 That inapposite authority does not advance the Secretary’s cause. Sovereign immunity does not bar Plaintiffs’ claims.
All Plaintiffs have standing. The Voter Plaintiffs and the Organizational Plaintiffs have standing to challenge the Vote By Mail Restrictions. To establish Article III standing, a plaintiff must show (1) an “injury in fact” (2) that is “fairly traceable” to the challenged conduct and (3) can be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Because Plaintiffs seek injunctive relief, only one party must 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). That threshold is clearly surpassed here by the allegations in Plaintiffs’ Complaint, as detailed below. It is axiomatic that, in ruling on a motion to dismiss, the Court must accept Plaintiffs’ allegations as true, including as related to Plaintiffs’ standing. See Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). 1. All Plaintiffs allege sufficient injury to confer standing. “To be an injury in fact, a threatened injury must be (1) potentially suffered by the plaintiff . . . , (2) concrete and particularized, not abstract, and (3) actual or imminent, not conjectural or hypothetical.” Stringer v. Whitley, 942 F.3d 715, 720–21 (5th Cir. 2019) (quotation marks omitted). “For a threatened future injury to satisfy the imminence requirement, there must be at least a ‘substantial risk’ that the injury will occur.” Id. at 722. That substantial risk is present here. See, e.g., Delisle v. Boockvar, No. 95 MM 2020 (Pa. May 29, 2020) (Wecht, J., concurring)
5 See, e.g., Zapata v. Smith, 437 F.2d 1024, 1025-26 (5th Cir. 1971) (reversing district court because United States not properly joined as a party); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704-05 (1949) (considering injunction to prohibit agency from entering into new contract on principles of sovereign immunity).
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(“[U]nder the current extraordinary circumstances [caused by COVID], the potential for impairment of the ability of voters to cast a valid ballot by mail is real and substantial, and the stakes are high.”). All Plaintiffs can show the requisite injury.
a. The Voter Plaintiffs’ alleged injuries are not speculative. The Secretary’s argument that the Voter Plaintiffs’ injuries are speculative because they are not “certainly impending,” and because “Plaintiffs do not allege they will be prevented from voting,” Dkt. 17 at 4, 6, misses the mark. For an individual plaintiff’s injury to be sufficient to confer standing, the Fifth Circuit requires “some evidence that the plaintiff intends to take the [injury-causing] action again.” Stringer, 942 F.3d at 722. Stringer held that individual plaintiffs lacked standing where they sued to challenge aspects of a voter registration option only available when individuals changed their place of residence in part because no plaintiff had “expressed any intention to move in the future.” Id. But here, there is no question that the Voter Plaintiffs intend to vote by mail in the upcoming election. See Compl. ¶¶ 13-19. Because they do, and because their health conditions and socioeconomic status put them at high risk for both COVID-19 and disenfranchisement as a result of the Vote By Mail Restrictions—which indisputably apply to them—their injuries are not speculative. Rather, the Voter Plaintiffs’ injuries are impending since, for example, Ms. Lewis’s and Ms. Lee’s signatures continually change due to their respective vision disorder and rheumatoid arthritis, putting them at a severe risk of being disenfranchised as a result of the Signature Match Requirement. Id. ¶¶ 13-14; see also Linda Jann Lewis Decl., Ex. B at Appx. 35-36 ¶ 6 (disability affects vision and signature); Ellen Sweets Decl., Ex. C at Appx. 40 ¶ 7 (fatigue from severe asthma affects handwriting); Benny Alexander Decl., Ex. D at Appx. 43 ¶ 5 (lightheadedness from congestive heart failure affects signature). And Mr. Morgan’s poverty and serious health condition prevent him from being able to venture out safely to buy a stamp to vote—as is required by the Postage Tax—which, in addition to the mail disruptions he has
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experienced due to the pandemic, puts him at serious risk of disenfranchisement due to the Ballot Receipt Deadline, particularly in concert with the Voter Assistance Ban that prohibits him from asking a friend to deliver his ballot. Morgan Decl., Ex. E at Appx. 47-48 ¶¶ 7-9; see also Lewis Decl. Ex. B at Appx. 36 ¶ 7 (limited income strains ability to purchase stamps, which she would hesitate to do now regardless because of the health risk that going out to buy stamps would pose).
Plaintiffs need not show it is certain that they will be disenfranchised by the Vote By Mail Restrictions to have standing to challenge them. Rather, the “threatened future injury (disenfranchisement) more than satisfies the standing necessary for injunctive relief.” Stringer v. Pablos, No. SA-16-CV-257-OG, 2020 WL 532937, at *8 (W.D. Tex. Jan. 30, 2020). “[I]ndividual plaintiffs should not be forced to wait and suffer a constitutional deprivation” when relief through this Court is available. Id. (citing Texas v. United States, 809 F.3d 134, 173 n.137 (5th Cir. 2015), as revised (Nov. 25, 2015)). “Simply put, a voter always has standing to challenge a statute that places a requirement on the exercise of his or her right to vote.” People First of Alabama v. Merrill, No. 2:20-cv-00619-AKK, 2020 WL 3207824 at *6-7 (N.D. Ala. June 15, 2020) (citing Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351-52 (11th Cir. 2009)).
Likewise, “[t]he inability of a voter to pay a poll tax . . . is not required to challenge a statute that imposes a tax on voting.” Common Cause, 554 F.3d at 1352 (citing Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966)). Cf. OCA-Greater Houston v. Texas, 867 F.3d 604, 612 (5th Cir. 2017) (“OCA”) (noting that injury need not be “large” or “substantial”; indeed, “it need not measure more than an identifiable trifle”).
Finally, the Secretary insultingly suggests that the harms posed to Plaintiffs by the Vote By Mail Restrictions are no big deal because “only 1.4 percent of mail-in ballots were rejected nationwide.” Dkt. 17 at 5. This shows the Secretary’s brazen disregard for the constitutional rights
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of the more than 9,000 Texas voters whose ballots were actually rejected as a result of those restrictions, even in non-pandemic conditions,6 and ignores well-established precedent. Disenfranchisement, even for a small number of people, imposes severe burdens on voting rights.7 In any event, the Voter Plaintiffs’ serious medical conditions and physical ailments that affect their signatures and put them at high risk for COVID-19 when venturing out to buy stamps or deliver a ballot that they cannot receive assistance in delivering provide the “Plaintiff-specific” allegations needed for standing because they show “that there is a substantial risk that they will suffer the potential future injury absent their requested relief.” Stringer, 942 F.3d at 722.
b. The Organizational Plaintiffs face associational injury. The Secretary argues that the Organizational Plaintiffs do not identify members sufficient to confer associational standing. Again, the Secretary misconstrues or simply misapprehends binding precedent. The individual participation of an organization’s members is “not normally necessary when an association seeks prospective or injunctive relief for its members,” as do Plaintiffs here. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996) (citation omitted); see also Richardson Order, Ex. A at Appx. 12-13 (complaint sufficiently pled associational standing based on injuries allegedly suffered by organizational plaintiffs’ members).8 Because the Complaint alleges that the Organizational
6 Notably, the report cited by the Secretary confirms that the rejection rate for mail ballots in Texas in the 2018 election was 1.76%, which is higher than the national average of 1.4%. U.S. Election Assistance Commission, 2018 Election Administration and Voting Survey, (June 2019) https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report. pdf at 30. 7 See, e.g., League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014) (“[T]he basic truth that even one disenfranchised voter—let alone several thousand— is too many.”); Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 591-93 (6th Cir. 2012) (law likely unconstitutional that affected only 0.248% of ballots cast). 8 See also Hancock Cty. Bd. of Supervisors v. Ruhr, 487 F. App’x 189, 198 (5th Cir. 2012) (association need not “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 a lack of associational standing”); Democratic Nat'l
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Plaintiffs are membership organizations and the Vote By Mail Restrictions place undue burdens on their members’ right to vote, the Complaint sufficiently alleges associational injury. See Compl. ¶¶ 20-25. The Secretary also repeats her position that, for the Voter Plaintiffs who are members of the NAACP and Alliance, their alleged individual injury is not sufficient to confer standing. Dkt. 17 at 6. But that argument falls flat for the reasons detailed above. See supra B.1.a.
c. The Organizational Plaintiffs face direct organizational injury. Organizational Plaintiffs also allege sufficient injury for direct organizational standing based on controlling Fifth Circuit precedent that the Secretary simply ignores. An organization suffers an Article III injury when it must divert resources from its usual activities to lessen the harm caused by an act that frustrates its mission. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). All three Organizational Plaintiffs satisfy this standard. First, Voto Latino will need to divert significant funds from its voter registration efforts, get out the vote efforts, and digital advertising budget to educate voters on how to avoid the burdens imposed by the Vote By Mail Restrictions, which frustrate its mission. See Compl. ¶ 21; Maria Teresa Kumar Decl. Ex. F at Appx 51-53 ¶¶ 6-10. Second, the Restrictions will frustrate the NAACP’s mission “to secure the political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons,” which it achieves by “engag[ing] in voter education and registration activities.” Compl. ¶ 23. But because of the Vote By Mail Restrictions, the NAACP “must divert additional time and resources to educate its members and constituents to make sure that they are able to obtain the postage necessary to mail their ballots; that they are aware of the Ballot Receipt Deadline and will be able
Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1320819, at *3 (W.D. Wis. Mar. 20, 2020) (party had associational standing based on allegation that the challenged laws “place[d] undue burdens on [its] members’ right to vote”).
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to mail their ballots in time for them to be received timely . . . ; and to make sure they are aware of the Signature Match Requirement and the need to contact county elections officials to ensure that their ballots have not been rejected on the basis of signature mismatch,” Id. ¶ 24, none of which it would have to do but for the Restrictions. Gary Bledsoe Decl., Ex. H at Appx 61-62 ¶ 7. And finally, the Alliance has diverted resources from its voter registration, phone banking, and get out the vote activities to education on how to avoid the pitfalls that the Restrictions impose. Compl. ¶ 25; Judy Bryant Decl. Ex. G at Appx 56-58 ¶¶ 5-6, 9. At the pleading stage, these allegations are sufficient to establish standing. Lujan, 504 U.S. at 560-61.
The Secretary’s assertion that these allegations are insufficient ignores controlling case law. In Havens Realty, the U.S. Supreme Court held that plaintiffs’ allegations that the defendants’ “racial steering practices” frustrated their “efforts to assist equal access to housing through counseling and other referral service” by forcing them “to devote significant resources to identify and counteract the defendant[s’] racially discriminatory steering practices” were sufficient to withstand a motion to dismiss. 455 U.S. at 379; see also Richardson Order, Ex. A at Appx. 10-12 (complaint sufficiently pled organizational standing by alleging organizational plaintiffs must expend “additional resources” to provide “instruction and support on mail-in ballots”); Bostelmann, 2020 WL 1320819, at *3 (same).9
Plaintiffs’ well-pled factual allegations clearly suffice; a point reinforced by cases from beyond the pleading stage. For example, in OCA, the organizational plaintiff’s mission was “to
9 Relatedly, the Fifth Circuit has made clear that the impact to an organization’s activities or resources does not need to be large or described in minute detail to establish standing. See OCA, 867 F.3d at 610-12 (injury requirement is “qualitative, not quantitative, in nature” and injury need not be large). The Secretary attempts to heighten that standard by citing NAACP v. City of Kyle, 626 F.3d 233, 238 (5th Cir. 2010) and non-binding precedent, Dkt. 17 at 8-9, but the Fifth Circuit expressly rejected a similar attempt in OCA. 867 F.3d at 612.
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promote civic participation and provide civic education, which it carrie[d] out through a ‘Get Out the Vote’ initiative.” 867 F.3d at 609. Because the challenged law impeded “some” of the plaintiff’s members from voting, the plaintiff “redirected some of its efforts toward educating its members and other members of the public about” the challenged law. Id. at 609-10. The Fifth Circuit held this was clearly sufficient for purposes of organizational standing because these voter education efforts “consumed [plaintiff’s] time and resources in a way they would not have been spent.” Id. at 612. Thus, because the Vote By Mail Restrictions will cause the Organizational Plaintiffs to divert resources away from their normal programs to combat the effects of the Restrictions, they have standing to challenge them.10
Unable to explain away the long line of similar cases conferring standing on similar organizations in similar voting rights cases, the Secretary largely bases her theory of organizational standing on a D.C. Circuit decision which found that a labor union lacked standing to challenge the constitutionality of the Line Item Veto Act. Dkt. 17 at 7-8 (suggesting plaintiffs must show a “direct conflict” between their mission and the defendant’s conduct, citing Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996)). The comparison the Secretary tries to draw is inapt. It is one thing to suggest that an Act concerning the President’s line item veto power is insufficiently related to a labor union’s mission for standing purposes, but to apply that reasoning to a nonprofit organization challenging laws that burden the very voters who those organizations serve, and that causes those organizations to divert their resources to activities addressing and attempting to ameliorate those burdens, is a logical leap that simply contradicts well-settled
10 See also Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (state party had standing because ID law caused it to “devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”); Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586-87 (5th Cir. 2006) (holding party had standing to challenge state action based on diversion of resources).
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precedent. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008). Organizational Plaintiffs’ allegations are sufficient to establish direct organizational injury.
2. Plaintiffs’ claims are caused and redressable by Defendant. The Secretary argues that she does not cause Plaintiffs’ injuries (and therefore, she asserts, cannot redress them) because it is local election officials, not her, who decide whether to count or reject a mail-in ballot, and local prosecutors, not her, who pursue charges for violations of the Voter Assistance Ban. See Dkt. 17 at 9. But, as a motions panel of the Fifth Circuit reiterated just weeks ago, OCA forecloses that argument. See TDP, 2020 WL 2982937, at *5-6 (reasoning that OCA “poses a significant obstacle” to the same causation and redressability argument the Secretary advances here) (citing OCA, 867 F.3d at 613). Plaintiffs do not challenge local election officials’ decisions, but instead, the election laws the State requires them to follow. In OCA, plaintiffs similarly challenged a Texas law that prohibited counties from allowing unregistered individuals to interpret local election officials’ communications with voters. 867 F.3d. at 607-08. There, as here, the Secretary argued that the plaintiffs should have sued the local officials who implemented that law. Id. at 612-13. The Fifth Circuit rejected that argument. It reasoned that, because the Secretary is Texas’s Chief Election Officer and is required to “obtain and maintain uniformity in the application, operation, and interpretation of” Texas’s Election Code, the Court held that the Secretary was positioned to redress the plaintiffs’ injuries caused by a generally applicable election law. Id. at 613 (citing Tex. Elec. Code § 31.003). So too here.11
11 As relevant here, the Secretary’s description of her statutory authority ignores portions of the Texas Election Code that empower her to “take appropriate action to protect the voting rights of the citizens of this state from abuse by the authorities administering the states[’] electoral processes,” and “order” local officials to “correct offending conduct” when performing official functions “in a manner that impedes the free exercise of a citizen’s voting rights.” Tex. Elec. Code.
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The Secretary attempts to avoid OCA’s inescapable application by asserting that it only reaches facial, rather than as applied, constitutional challenges, Dkt. 17 at 10 n.4, but that distinction is a red herring, and is undermined by a very recent decision from a motions panel of the Fifth Circuit. Nothing about OCA’s reasoning was premised exclusively on the fact that plaintiffs brought a facial challenge. And indeed, a Fifth Circuit motions panel recently applied OCA’s reasoning in a suit challenging the constitutionality of Texas’s mail voting rules as applied during COVID-19 pandemic. See TDP, 2020 WL 2982937.
The Secretary next tries to distinguish OCA by relying on Okpalobi v. Foster, 244 F.3d 405, 409 (5th Cir. 2001), to argue that OCA does not apply because the Texas Election Code provides a private right of action for enforcement of the challenged statute, as did the statute in Okpalobi. See Dkt. 17 at 10 n.2 (citing Tex. Elec. Code § 221.003). Okpalobi involved a law providing unlimited liability against doctors in suit by patients for damages caused by abortion procedures. The court concluded that the doctor plaintiffs’ injuries were caused by those private suits, not state officials who had no “enforcement connection to the challenged statute.” 244 F.3d at 427 & n.35. It was thus the statute directly at issue in Okpalobi that contained the private right of action that OCA relied on in distinguishing Okpalobi.
But here, none of the Vote By Mail Restrictions contain a private right of action. The statute the Secretary relies on is the election contest statute, which requires a plaintiff to show the result of the election was different than that reported. Tex. Elec. Code § 221.003. Here, the question is
§ 31.005. Indeed, the Secretary’s authority to issue orders to protect voting rights is accompanied by its own enforcement scheme: if an official “fails to comply, the secretary may seek enforcement . . . by a temporary restraining order or a writ of injunction or mandamus obtained through the attorney general.” Id. Thus, in addition to being the chief election official responsible for maintaining uniformity in the application and interpretation of the Election Code, Texas law expressly authorizes the Secretary to remedy the voting rights violations identified in Plaintiffs’ suit and to implement their requested relief. See id.
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entirely different—whether specific provisions of state law violate the U.S. Constitution. No state law provides a private right of action on that question. Indeed, under the Secretary’s logic, the Fifth Circuit’s decision in OCA was wrong: that case also involved an election law, and the private right of action statute that the Secretary now cites as supposedly barring proceedings against the Secretary regarding election laws was in effect when OCA was decided. OCA controls.
Finally, the Secretary’s invocation of Jacobson v. Florida Secretary of State, 957 F.3d 1193 (11th Cir. 2020) is also inapposite. That decision rested on specific features of Florida law that made the injury flowing from a ballot order statute not redressable by or traceable to Florida’s Secretary of State. Id. at 1207. But the Fifth Circuit expressly held in OCA that the Texas Secretary of State’s designation as “chief election officer” establishes standing for plaintiffs who sue the Secretary in election-law contexts in Texas, as do Plaintiffs here.
3. The Organizational Plaintiffs have statutory standing. Finally, the Secretary ignores binding precedent to argue that 42 U.S.C. § 1983 does not permit Organizational Plaintiffs to challenge laws burdening the right to vote because organizations are third parties that do not themselves have the right to vote. See Dkt. 17 at 10-11. Yet again, this argument has already been rejected by the Fifth Circuit, and for good reason. The statutory standing inquiry asks courts “to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). The deprivation of rights alleged by Organizational Plaintiffs are those guaranteed by the First, Fourteenth, and Twenty-Fourth Amendments to the U.S. Constitution, which are squarely within the zone of interests encompassed by § 1983. The Secretary’s position that organizations are barred from suing under § 1983 contradicts settled law. The Fifth Circuit has expressly interpreted § 1983 to allow suits by organizations that
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have established associational standing. See, e.g., Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 551 (5th Cir. 2010) (nonprofit had associational standing to assert § 1983 claims on members’ behalf in seeking prospective declaratory and injunctive relief).12
So too for direct organizational standing. Courts often find that organizations have direct standing under. § 1983 to bring civil rights claims based on a diversion of resources injury alone— in part because a claim based on an organization’s direct injury vis-à-vis its frustration of mission and diversion of resources due to an unconstitutional law is not a third-party claim.13 Accordingly, even if the Organizational Plaintiffs only had direct organizational standing vis-à-vis their diversion of resources and the frustration of their missions (as opposed to both direct and representational standing, as is the case here), they would still have standing under § 1983.
The Secretary relies on cases that merely illustrate the general prohibition on individual, third-party standing—i.e., the standing of an individual seeking to assert a claim on behalf another individual—but all are inapposite because they do not involve organizations. See Dkt. 17 at 10-11 (citing Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986) (mother and daughter could not assert the third-party deprivation of husband and father’s constitutional rights); Danos v. Jones, 652 F.3d 577, 582 (5th Cir. 2011) (judge’s secretary lacked standing to challenge constitutionality of her judge’s and employer’s suspension); Conn v. Gabbert, 526 U.S. 286, 287 (1999) (attorney lacked standing to challenge infringement of constitutional rights of client)). As explained above,
12 See also Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1278-79 (5th Cir. 1981) (church had representative standing in § 1983 action); see also Jornaleros de Las Palmas v. City of League City, 945 F. Supp. 2d 779, 800 (S.D. Tex. 2013) (organization was authorized to sue under § 1983 on behalf of its members). 13 See, e.g., Georgia Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1258 (N.D. Ga. 2018) (plaintiffs have “organizational standing” under § 1983 based on need to “divert personnel and resources”); Inclusive Cmtys. Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 749 F. Supp. 2d 486, 496 (N.D. Tex. 2010) (finding organizational plaintiff suffered an injury to its resources, and this was enough to establish standing to bring a claim under § 1983).
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see supra B.1.b-c, Plaintiffs have demonstrated both associational and organizational standing, which forecloses the Secretary’s “statutory standing” defense and easily distinguishes this case from the authorities the Secretary cites.
Plaintiffs’ Complaint validly states four claims for relief. The Secretary attempts to litigate the merits of this case by delving into the intricacies of each of Plaintiffs’ claims under the guise of Rule 12(b)(6). See Dkt. 17 at 11-27. But the only question at this stage is whether the allegations in Plaintiffs’ Complaint state valid claims for relief, which they unequivocally do. See Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013) (dismissal under Rule 12(b)(6) “is appropriate only if the complaint fails to plead enough facts to state a claim to relief that is plausible on its face,” and is “viewed with disfavor and is rarely granted”); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 577 (2007) (dismissal only appropriate if court determines it is “beyond doubt” that the claimant cannot prove a plausible set of facts that support the claim and would justify relief). In evaluating the Secretary’s challenge, moreover, the Court must (1) accept Plaintiffs’ factual allegations as true, and (2) view them in the light most favorable to Plaintiffs. See Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). Because the Secretary’s Motion is a premature attempt to litigate plausibly pleaded claims and block them from having their day in court, it should be denied. 1. Anderson-Burdick claim (all four Vote By Mail Restrictions) The Secretary’s argument that Plaintiffs have not sufficiently alleged an undue burden on the right to vote misunderstands the law and ignores the ample facts plead in Plaintiffs’ Complaint. Plaintiffs’ undue burden claim, which is evaluated under the familiar Anderson-Burdick test, encompasses all four Vote By Mail Restrictions—the Ballot Receipt Deadline, Signature Match Requirement, Voter Assistance Ban, and Postage Tax—and is based on Plaintiffs’ allegations that, even in ordinary times, those Restrictions burden the right to vote, and that the pandemic has
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helped exacerbate those burdens to a point that outweighs the government’s interest in them (to the extent it even has one). See, e.g., Compl. ¶¶ 114-121. Under Anderson-Burdick, a court considering such a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights 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 v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
Where, as here, “plaintiffs have plausibly alleged that each of the challenged provisions imposes a burden on voters that is not justified by the state’s interests,” the “allegations are sufficient to survive a motion to dismiss.” Democratic Nat’l Comm. v. Bostelmann, No. 20-CV249-WMC, 2020 WL 3077047, at *5 (W.D. Wis. June 10, 2020); see also Miller v. Doe, 422 F. Supp. 3d 1176, 1185-86 (W.D. Tex. 2019) (refusing to dismiss claim subject to Anderson-Burdick test where plaintiffs alleged ballot access provisions were unconstitutional); League of Women Voters of Florida, Inc. v. Detzner, 354 F. Supp. 3d 1280, 1288 (N.D. Fla. 2018) (“It is sufficient for a 12(b)(6) motion that Plaintiffs have alleged [that the challenged laws] have burdened their voting rights.”). Here, Plaintiffs have alleged that all four Vote By Mail Restrictions impose undue burdens on the right to vote, and that these burdens will be all the more severe due to the pandemic, which is nearly certain to limit voters’ ability to vote in person and otherwise escape the burdens imposed by the Restrictions. See, e.g., Compl. ¶¶ 114-121. Plaintiffs have also alleged that no state interest justifies these burdens. See id.
First, Plaintiffs allege that the Postage Tax imposes a burden on the right to vote because, at best, it requires Texans “to pay to vote by mail so that they can avoid exposing themselves to
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the virus while exercising their right to vote,” and at worst, “disenfranchises the millions of Texans who cannot risk exposure to COVID-19 but who also cannot obtain postage to mail their ballots.” Id. ¶ 114; see also id. ¶¶ 70, 73-74, 76. They also allege that “[t]he Secretary can offer no justification that outweighs the significance of the burden under these circumstances.” Id. ¶ 115.
Second, Plaintiffs allege that the Ballot Receipt Deadline burdens the right to vote because it subjects ballots timely mailed by voters to arbitrary disenfranchisement due to the vagaries of the USPS, which is facing grave difficulties and delays in the face of the global pandemic. Id. ¶¶ 79-83, 87-90, 93-95, 116. Plaintiffs further allege that this burden is not outweighed by any State interest since the Secretary already counts other ballots—those from overseas voters—if received by the sixth day after the election, and that “any administrative costs are dwarfed by the constitutional injury to the Texans completely disenfranchised because the USPS did not timely deliver a ballot timely mailed by the voter.” Id. ¶ 117. To be sure, burdens on voting rights are especially serious when voters are harmed through no fault of their own. See, e.g., Husted, 696 F.3d at 597 (holding that an Ohio law that rejected ballots cast in the wrong precinct but the correct polling place solely because of poll worker error imposed “substantial” burdens on voters).
Third, Plaintiffs allege that the Signature Match Requirement burdens voters because it subjects them to an arbitrary and error-prone process if their ballot signature is deemed to be a mismatch, which may thus result in disenfranchisement without their agency, knowledge, or any opportunity to cure any purported problems with their lawfully cast ballot. Compl. ¶¶ 96-104, 118. They go on to allege that “[t]he administrative burden of notifying voters of signature mismatch is no different before the election than it is after the election, when counties are now required to notify voters that their ballots were rejected,” and the Requirement “does not serve an interest in
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fraud that could not otherwise be achieved without the disenfranchisement of countless Texas voters,” particularly since a cure process would satisfy any anti-fraud interest. Id. ¶ 119.
Fourth, Plaintiffs allege that the Voter Assistance Ban burdens the right to vote because it effectively disenfranchises voters who require assistance in mailing their ballots but lack a family member or roommate to assist, and also disenfranchises voters who are understandably concerned that unpredictable USPS delays will otherwise disenfranchise them, but are either unwilling or unable to venture out to deliver their ballots due to public health concerns. Id. ¶¶ 105-11, 120. Plaintiffs further allege that this burden is “heavier on poor, minority, and rural voters who generally have less access to postal services, are less likely to have access to personal and reliable transportation, and are less able to bear the costs of waiting in long lines to vote or exposing themselves to health risks in order to submit a mail ballot in person.” Id. ¶ 107. Finally, Plaintiffs allege that the State’s interest in enforcing the Ban “cannot justify disenfranchising voters who require assistance to timely deliver their ballots,” especially since Texas laws already criminalizes any exercise of undue influence or voting fraud that might be captured by the Ban. Id. ¶ 120.
These alleged burdens on voters and lacking state interests more than adequately state an undue burden on the right to vote claim sufficient to withstand the Secretary’s motion to dismiss. See Miller, 422 F. Supp. 3d at 1185-86. Moreover, as Plaintiffs also allege, these burdens are all but certain to increase as the COVID-19 crisis continues, and as Texas voters are increasingly required to rely on mail ballots to protect their health. See generally Compl.
Although the Secretary asserts a number of justifications for the Vote By Mail Restrictions, they do nothing to undermine the sufficiency of Plaintiffs’ allegations—which is all that is at issue at the pleadings stage. For example, the Secretary points to a 2003 Indiana case to suggest that the specter of fraud outweighs the Restrictions’ burdens on Plaintiffs. Dkt. 17 at 26. But that
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argument—with which Plaintiffs, of course, disagree, see Compl. ¶ 120—does not show that Plaintiffs’ undue burden claim is implausible. Likewise, the fact that the Secretary thinks she may have defenses to Plaintiffs’ undue burden claim does not mean that it fails as a matter of law. The Secretary can raise her substantive arguments at a later point in the case. But because Plaintiffs’ allegations, when taken as true, demonstrate that the Vote By Mail Restrictions present an undue burden on the right to vote that is not outweighed by any State interest, Plaintiffs have more than adequately pled a plausible undue burden claim to survive the motion to dismiss.
Rather than take Plaintiffs’ allegations as true—as the Court is required to do here—the Secretary asks this Court to dismiss Plaintiffs’ undue burden claim without the robust perspective that a developed record would provide. But undue burden claims necessarily require factual development to determine whether the State’s interests outweigh the burden on voters. As courts across the country have held, dismissal of a claim subject to the Anderson-Burdick standard is not appropriate at the motion to dismiss stage because it requires weighing of the evidence and balancing of the relevant factors. See, e.g., Bostelmann, 2020 WL 3077047, at *5; Detzner, 354 F. Supp. 3d at 1288. Indeed, circuit courts across the country have reversed the dismissal of claims subject to the Anderson-Burdick standard before the evidentiary record was developed. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 447 (9th Cir. 2018) (“[W]ithout any factual record at this stage, we cannot say that the Secretary’s justifications outweigh the constitutional burdens on [plaintiff] as a matter of law.”); Price v. New York State Bd. of Elections, 540 F.3d 101, 109 (2d Cir. 2008) (explaining, in reversing lower court’s dismissal, that while plaintiffs offered little evidence about the burden that election law imposed, “[f]or our initial purposes, it is important only that there is at least some burden on the voter-plaintiffs’ rights”); Wood v. Meadows, 117 F.3d 770, 776 (4th Cir. 1997); Duke v. Cleland, 5 F.3d 1399, 1405-06 & n.6 (11th Cir. 1993) (noting that it was
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“impossible for [the Court] to undertake the proper” Anderson-Burdick analysis without a record). The same factual development is necessary here. This Court cannot properly dismiss Plaintiffs’ undue burden claim without considering an evidentiary record demonstrating the magnitude of the alleged burden on the right to vote. Tellingly, the Secretary has not cited a single case dismissing a claim subject to the Anderson-Burdick test on a motion to dismiss. Not one.
The Secretary’s assertion that the burdens imposed by the Vote By Mail Restrictions do not implicate the right to vote is plainly wrong. See Dkt. 17 at 13-14 (citing McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807 (1969)); see also id. at 17, 27. The Secretary cites no persuasive—much less controlling—support for this position, instead relying on an equal protection (not undue burden) case decided twenty years prior to Anderson and Burdick concerning whether inmates of a county jail had a right to receive absentee ballots.14 Moreover, the Secretary ignores the plain fact that courts across the country routinely employ the Anderson-Burdick balancing test to evaluate challenges to laws that circumscribe how citizens vote. See, e.g., Lee v. Virginia State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) (applying Anderson-Burdick to challenge concerning voter ID law); Obama for Am. v. Husted, 697 F.3d 423, 429-30 (6th Cir. 2012) (applying Anderson-Burdick to challenge concerning early voting). The Secretary’s argument that “[t]he Constitution does not include a freestanding right to vote in whatever manner Plaintiffs deem most convenient” is an obvious strawman. Dkt. 17 at 13. There is neither a constitutional right to vote by mail nor a constitutional right to vote in person at a polling place on
14 Although TDP discussed McDonald with regard to whether the right to vote is implicated by the Twenty-Sixth Amendment, that discussion is inapplicable here based on the different focus of this case. Moreover, TDP is non-precedential and, as discussed in Gloria v. Hughes, Case No. 5:20cv-00527-OLG, ECF No. 15 (June 15, 2020 W.D. Tex.), has flawed reasoning as to when and whether the right to vote is implicated. TDP’s reasoning as to sovereign immunity and standing, as discussed above, is uncontroversial based on OCA.
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Election Day; there is only “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Anderson, 460 U.S. at 787 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). If signing of a referendum merely seeking a statewide vote on an issue “implicate[s] the fundamental right to vote,” Lemons v. Bradbury, 538 F.3d 1098, 1102 (9th Cir. 2008), then surely restrictions on how that vote is cast do too. Plaintiffs’ Complaint plausibly alleges that the right to vote effectively is burdened by the Vote By Mail Restrictions.
The Secretary’s related suggestion that Plaintiffs cannot state an undue burden claim because they do not allege total deprivation of their right to vote can also be dismissed out of hand. See, e.g., Dkt. 17 at 12 (“[A]ny Texas voter who finds voting by mail inconvenient is free to vote in person.”). The Anderson-Burdick standard hardly requires the denial of the right to vote for a state election law to be unconstitutional. It instead requires the Court to “weigh ‘the character and magnitude of the asserted injury to the rights . . . 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 (1983)). Under this standard, burdens falling short of a complete denial of the right to vote have not merely been found sufficient to state a claim, but sufficiently burdensome as to be unconstitutional. See, e.g., Obama for Am., 697 F.3d at 467-37 (eliminating early voting for non-military voters held unconstitutional, even though polls were still open to them on Election Day); League of Women Voters of Florida, Inc. v. Detzner, 314 F. Supp. 3d 1205, 1209 (N.D. Fla. 2018) (eliminating early voting at university building held unconstitutional, even though students could vote elsewhere both before and on Election Day). Under the grave circumstances of the COVID-19 pandemic—which
22

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the Secretary does not acknowledge in her 27 pages of briefing—her suggestion that voting by mail is simply a luxury or convenience is out of touch with reality, and the law.
Finally, the Secretary’s insistence that the Vote By Mail Restrictions are lawful because some other states have similar restrictions is a red herring that violates Anderson-Burdick’s basic inquiry. States’ election laws are not fungible. Instead, each state’s law must be considered individually, taking into account the burden on that state’s voters. Anderson-Burdick’s balancing test “cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions”; the “results of [the] evaluation will not be automatic” because “there is ‘no substitute for the hard judgments that must be made.’” Anderson, 460 U.S. at 789-90 (quoting Storer v. Brown, 415 U.S. 724, 730 (1983)). In each case, courts must make the “hard judgment” our Constitution demands, based on the specific injuries plaintiffs suffer as a result of the challenged laws, the specific justifications offered by the State for the laws, and whether the laws advance those interests sufficiently to justify the injuries to the plaintiffs’ right—none of which, it bears noting again, can be done without a factual record. See Crawford, 553 U.S. at 190 (controlling op.) (citing Norman v. Reed, 502 U.S. 279, 288-89 (1992)). Thus it is “not enough for [Texas] to simply rely on [similar provisions] in other states; the necessary question is how [the Vote By Mail Restrictions] interact[] with other voting practices in [Texas], and the burdens th[ese] law[s] place[] on voters who vote within [Texas’s] electoral framework.” Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 665 (6th Cir. 2016).
To put a finer point on it, the Supreme Court has emphasized that when assessing the severity of a burden, courts must consider the effects of the restriction on those voters who are actually impacted by the law. Crawford, 533 U.S. at 198, 201 (controlling op.) (explaining that “[t]he burdens that are relevant to the issue before us are those imposed on persons who are eligible
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to vote but do not possess a [photo ID],” not the burdens on all voters). Thus, for example, the Secretary’s argument that the Ballot Receipt Deadline is not burdensome because a large percentage of voters are able to comply with it is not persuasive. That some voters can comply with the Vote By Mail Restrictions, or that other states also have such deadlines, is of no import to the decision that this Court must make ⸺i.e., how the Texas voters affected by these Restrictions are burdened⸺and is certainly insufficient to warrant dismissal at the pleading stage. Because Plaintiffs adequately allege that the Restrictions place an undue burden on the right to vote that is not outweighed by state interests, dismissal of their undue burden claim is not appropriate.
2. Equal protection claim (Ballot Receipt Deadline & Signature Match) The Secretary garbles the legal standard under which this Court must evaluate Plaintiffs’ equal protection claim. First, she incorrectly asserts that the Ballot Receipt Deadline component of Plaintiffs’ equal protection claim will only be subject to (and in her view, cannot overcome) rational basis review. See Dkt. 17 at 20. Second, she wrongly suggests that Plaintiffs must show intentional discrimination to support the Signature Match part of their equal protection claim, and argues that it must fail because “Plaintiffs do not even assert, let alone plausibly allege, discriminatory intent.” Id. at 25. Neither are correct. Where, as here, “a plaintiff alleges that a state has burdened voting rights through the disparate treatment of voters, [courts] review the claim using the ‘flexible standard’ outlined in [Anderson] and [Burdick].” Obama for Am., 697 F.3d at 429-30 (6th Cir. 2012). Courts across the country have confirmed that claims alleging equal protection violations in the voting context are properly evaluated under Anderson-Burdick. See, e.g., Republican Party of Ark. v. Faulkner Cty., 49 F.3d 1289, 1293 n.2 (8th Cir. 1995) (Anderson sets out proper method for balancing equal protection concerns); Fulani v. Krivanek, 973 F.2d 1539, 1543 (11th Cir. 1992) (“[E]qual protection challenges to state ballot-access laws are considered under the Anderson test.”); Rosen
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v. Brown, 970 F.2d 169, 178 (6th Cir. 1992) (“utilizing the Anderson balancing test” in a challenge based on equal protection); Fla. Democratic Party v. Detzner, No. 4:16CV607-MW/CAS, 2016 WL 6090943, at *1, *3, *6 (N.D. Fla. Oct. 16, 2016) (applying Anderson framework to equal protection claim targeting mail vote signature laws). No part of the Anderson-Burdick assessment requires a showing of intentional discrimination. For the same reasons detailed above, see supra C.1, Plaintiffs’ allegations that the Signature Match Requirement and “Ballot Receipt Deadline, as applied, treat[] Texans different depending on where they live,” Compl. ¶ 123—in concert with their allegations regarding those Restrictions’ burdens on the right to vote, id. ¶ 124—are sufficient to state an equal protection claim to be evaluated under the Anderson-Burdick framework.15
3. Procedural due process claim (Signature Match)16 The Secretary’s reliance on Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008) to argue that Plaintiffs’ Signature Match due process claim cannot succeed is misplaced, as recently distinguished by this court in the Richardson Order, Ex. A at Appx. 24 n.16. At issue in Lemons was the process for verifying referendum petition signatures. The process to determine signature matches in Lemons drastically differed from that at issue here. In Lemons, the Oregon Secretary of State “sponsor[ed] signature verification training sessions, and county elections officials regularly attend these sessions and use the materials provided.” Id. at 1106. But in Texas, there is no such process because “the county officials that verify signatures are untrained.” Compl. ¶ 97. Lemons is also inapposite as to the process afforded after a signature mismatch is determined.
15 The Secretary contends that Bush v. Gore, 531 U.S. 98 (2000) does not advance Plaintiffs’ equal protection claim, Dkt. 17 at 20, 24, but that argument goes to the merits of Plaintiffs’ case. It does not speak to the sufficiency of Plaintiffs’ allegations, which is all that is at issue here. 16 Plaintiffs do not pursue a procedural due process claim with respect to the Voter Assistance Ban. The substance of Plaintiffs’ Third Claim for Relief, Compl. ¶¶ 125-127, only addresses the Signature Match Requirement. The mention of “Voter Assistance Ban” in the heading is inadvertent. While Plaintiffs do not believe doing so is necessary, they could amend their complaint at the Court’s direction upon resolution of this motion to resolve any ambiguity.
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Lemons did not, as the Secretary asserts, suggest that no notice or cure process was needed to address a signature mismatch determination for votes. See Dkt. 17 at 24. Rather, the plaintiffs in Lemons argued that the ‘cure’ process that applied to mail-in ballots in Oregon should apply to the petition signatures at issue in Lemons, which the Ninth Circuit said was unnecessary. But the Court said nothing about whether the cure process for ballots determined to have a signature mismatch provided due process. “Unsurprisingly, courts have held that the lack of an opportunity to cure mail-in ballot rejections, which disenfranchises thousands of voters, is a serious burden on the right to vote.” Richardson Order, Ex. A at Appx. 22 (quotation marks omitted) (citing cases).
Here, the interest Plaintiffs allege is affected by the Signature Match Requirement is the liberty interest in voting and in having one’s vote counted, Compl. ¶¶ 126-127, which cannot be denied without due process. See United States v. Texas, 252 F. Supp. 234, 250 (W.D. Tex. 1966), aff’d, 384 U.S. 155 (“[I]t cannot be doubted that the right to vote is one of the fundamental personal rights included within the concept of liberty as protected by the due process clause.”); see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018) (“[A] voter has a sufficient liberty interest once the State permits voters to vote absentee.”) (quotation marks omitted). “[O]nce the state creates an absentee voting regime, they ‘must administer it in accordance with the Constitution.’” Martin v. Kemp, 341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018) (quoting Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006)). Plaintiffs validly state a due process claim to determine whether that is occurring here.
Ultimately, a procedural due process claim is not appropriate for disposition at the pleading stage because. “[M]ost of the Secretary’s arguments for dismissal would require the Court to balance and evaluate the parties’ associated burdens, interest and justifications,” but doing so at the motion to dismiss stage “would be improper” since “the Court must accept Plaintiffs’ factual
26

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allegations as true as part of the 12(b)(6) analysis, and no factual record has been developed at this stage.” Richardson Order, Ex. A at Appx. 22.
4. Poll tax claim (Postage Tax) The Secretary wrongly argues that Plaintiffs cannot state a postage tax claim because there is no postage tax. Her cavalier assertion that “any Texas voter who finds voting by mail inconvenient is free to vote in person,” Dkt. 17 at 11, turns a blind eye to the real physical limitations some voters face and the grave public health concerns gripping our entire nation during the ongoing pandemic. There is an unavoidable monetary cost to vote for voters who are not able to vote in person or hand deliver their ballots, including individuals who are disabled or incapacitated from COVID-19 or otherwise. For those voters, neither in-person voting nor hand delivery of mail ballots is a realistic option. The Secretary does not dispute this, nor does she seriously dispute that it costs money to cast an absentee ballot as a general principal. The Supreme Court has unequivocally held that “voting cannot hinge on ability to pay . . . for it is a ‘fundamental political right . . . preservative of all rights.’” M.L.B. v. S.L.J., 519 U.S. 102, 124 n.14 (1996) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). This analysis is the same regardless of whether a voter can pay, which undermines the Secretary’s de minimis burden argument. See Harper, 383 U.S. at 668 (holding that poll taxes, even if not burdensome for the average voter, violate Fourteenth Amendment because of burdens they impose on poor voters). And finally, the Secretary’s assertion that the Postage Tax surely must be constitutional because other states have similar requirements defies reason: that rationale would not have fared any better for anti-miscegenation laws in the 1970s as it should here. Plaintiffs have stated a poll tax claim.
CONCLUSION Plaintiffs respectfully request that the Court deny the Secretary’s Motion to Dismiss.
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Dated: June 17, 2020

Respectfully submitted,
/s/ Skyler M. Howton
Skyler M. Howton, TX# 24077907 PERKINS COIE LLP 500 North Akard St., Suite 3300 Dallas, TX 75201-3347 Telephone: (214) 965-7700 Facsimile: (214) 965-7799 showton@perkinscoie.com
Marc E. Elias* Aria C. Branch* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 melias@perkinscoie.com abranch@perkinscoie.com
Kevin J. Hamilton* William B. Stafford* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 khamilton@perkinscoie.com wstafford@perkinscoie.com
Gillian Kuhlmann* PERKINS COIE LLP 1888 Century Park East, Suite 1700 Century City, CA 90067 gkuhlmann@perkinscoie.com
Sarah Schirack* PERKINS COIE LLP 1029 W. 3rd Ave, Suite 300 Anchorage, AK 99517 sschirack@perkinscoie.com
Attorneys for Plaintiffs
*Pro hac vice applications pending

28

Case 5:20-cv-00577-OLG Document 19 Filed 06/17/20 Page 31 of 31 CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on June 17, 2020, and that all counsel of record were served by CM/ECF.
/s/ Skylar M. Howton
29

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 1 of 65

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

LINDA JANN LEWIS, MADISON LEE, ELLEN SWEETS, BENNY ALEXANDER, GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, and TEXAS ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs,
v.
RUTH HUGHS, in her official capacity as Texas Secretary of State, Defendants.

Civil Case No. 5:20-cv-00577
Related to Gloria et al. v. Hughs et al., No. 5:20-cv-00527

APPENDIX IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS

Exhibit
A
B C D E F G

Document Description

Page Numbers

Order Denying Motion to Dismiss in Richardson v. Hancock, Case No. 5:19-cv00963-OLG, (W.D. Tex. Dec. 23, 2019) at ECF No. 41 (“Richardson Order”)

Appendix 1-33

Declaration of Linda Jann Lewis

Appendix 34-37

Declaration of Ellen Sweets

Appendix 38-41

Declaration of Benny Alexander

Appendix 42-44

Declaration of George Morgan

Appendix 45-49

Declaration of Maria Teresa Kumar

Appendix 50-54

Declaration of Judy Bryant

Appendix 55-58

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 2 of 65

H

Declaration of Gary Bledsoe

Appendix 59-62

Dated: June 17, 2020

Respectfully submitted,
/s/ Skyler M. Howton
Skyler M. Howton, TX# 24077907 PERKINS COIE LLP 500 North Akard St., Suite 3300 Dallas, TX 75201-3347 Telephone: (214) 965-7700 Facsimile: (214) 965-7799 showton@perkinscoie.com
Marc E. Elias* Aria C. Branch* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 melias@perkinscoie.com abranch@perkinscoie.com
Kevin J. Hamilton* William B. Stafford* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 khamilton@perkinscoie.com wstafford@perkinscoie.com
Gillian Kuhlmann* PERKINS COIE LLP 1888 Century Park East, Suite 1700 Century City, CA 90067 gkuhlmann@perkinscoie.com
Sarah Schirack* PERKINS COIE LLP 1029 W. 3rd Ave, Suite 300 Anchorage, AK 99517 sschirack@perkinscoie.com
Attorneys for Plaintiffs
*Pro hac vice applications pending

-2-

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 3 of 65 CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on June 17, 2020, and that all counsel of record were served by CM/ECF.
/s/ Skylar M. Howton
-3-

CCaassee55:2:109-c-cvv-0-000597673-O-OLLGG DDooccuummeennt t1491-1 FFileiledd1026/2/137/1/290 PPaaggee14oof f3635

Appx 1

Exhibit A

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Appx 2

Exhibit A

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Appx 3

Exhibit A

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Appx 4

Exhibit A

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Appx 5

Exhibit A

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Appx 6

Exhibit A

CaCsaese5:52:01-9c-vc-v0-00507976-3O-OLGLG DDocoucmumenetn1t 94-11 FFiilleedd 1026//2137//1290 PPaaggee 710ofo3f 365

Appx 7

Exhibit A

CaCsaese5:52:01-9c-vc-v0-00507976-3O-OLGLG DDocoucmumenetn1t 94-11 FFiilleedd 1026//2137//1290 PPaaggee 811ofo3f 365

Appx 8

Exhibit A

CaCsaese5:52:01-9c-vc-v0-00507976-3O-OLGLG DDocoucmumenetn1t 94-11 FFiilleedd 1026//2137//1290 PPaaggee 912ofo3f 365

Appx 9

Exhibit A

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Appx 10

Exhibit A

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Appx 11

Exhibit A

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Appx 12

Exhibit A

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Appx 13

Exhibit A

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Appx 14

Exhibit A

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Appx 15

Exhibit A

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Appx 16

Exhibit A

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Appx 17

Exhibit A

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Appx 18

Exhibit A

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Appx 19

Exhibit A

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Appx 20

Exhibit A

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Appx 21

Exhibit A

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Appx 22

Exhibit A

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Appx 23

Exhibit A

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Appx 24

Exhibit A

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Appx 25

Exhibit A

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Appx 26

Exhibit A

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Appx 27

Exhibit A

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Appx 28

Exhibit A

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Appx 29

Exhibit A

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Appx 30

Exhibit A

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Appx 31

Exhibit A

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Appx 32

Exhibit A

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Appx 33

Exhibit A

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 37 of 65

Appx 34

Exhibit B

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 38 of 65

Appx 35

Exhibit B

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Appx 36

Exhibit B

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 40 of 65

Appx 37

Exhibit B

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 41 of 65

Appx 38

Exhibit C

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 42 of 65

Appx 39

Exhibit C

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 43 of 65

Appx 40

Exhibit C

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 44 of 65

Appx 41

Exhibit C

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 45 of 65

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

LINDA JANN LEWIS, MADISON LEE, ELLEN SWEETS, BENNY ALEXANDER, GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, and TEXAS ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs,
vs.
RUTH HUGHS, in her official capacity as Texas Secretary of State,
Defendant.

Civil Action No. 5:20-cv-00577
Related to Gloria et al. v. Hughs et al., No. 5:20-cv-00527

DECLARATION OF BENNY ALEXANDER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to 20 U.S.C. § 1746, I, Benny Alexander, declare as follows: 1. My name is Benny Alexander. I am over the age of 18, have personal knowledge of the facts stated in this declaration, and can competently testify to their truth. 2. I live in San Antonio, Texas, and am a registered voter in Bexar County. I am 66 years old and the pastor of New Way Bible Fellowship Church in San Antonio. I have been at New Way Bible Fellowship for twelve years. I have been a minister for 22 years, and before becoming the pastor of New Way Bible Fellowship I was also a real estate appraiser. 3. I have always been politically and civically engaged. In 1988, I ran for state representative. Ex. A (Campaign Flyer). I was also on the Texas State Democratic Executive Committee for almost ten years, from 1997 to 2006. I represented 26 counties on the committee. Over the years, I’ve served on the Bexar County Housing Board, San Antonio Transit Board, San

App1x 42

Exhibit D

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 46 of 65
Antonio Equal Employment Opportunity Committee, Bexar County Blue Ribbon Committee for the Sheriff’s Department, and many more. I’ve also ran numerous local, state, and federal political campaigns.
4. Beyond these activities, I am committed to participating in elections so that my interests and the interests of the community I lead are heard. I have voted in every election since I turned 18. I have never voted by mail because as a community leader I prefer to go to the polls to engage others and show them that I am voting to lead by example. However, I suffer from congestive heart failure and diabetes, both of which put me as risk of severe complications from COVID-19. Therefore, though I prefer to vote in person, I plan to vote by mail in November 2020 because I am unwilling to expose myself to the risk of infection by waiting in long lines at Bexar County polling locations.
5. I am aware that Texas election law includes the Signature Match Requirement, which requires counties to verify a voter’s signature with no instructions for county officials, and no provision of the opportunity for a voter to cure signature mismatch. I understand that this has resulted in mail-in ballots being rejected for signature mismatch reasons even though the ballot was, in fact, properly signed by the voter. I fear the same thing happening to me. As I get older and on days when my congestive heart failure has me feeling weak and lightheaded, I’ve noticed my handwriting and signature changes. And I understand that the signatures of even perfectly healthy people can fluctuate for no obvious reason. I fear that my mail-in ballot will be rejected for mismatching signatures despite my best effort to clearly and uniformly sign my application to vote by mail and my ballot carrier envelope.
6. I am also very concerned that I will be unable to return my marked mail-in ballot by the Ballot Receipt Deadline. I understand that the USPS is under great strain as many more

App2x 43

Exhibit D

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 47 of 65
people are relying on the mail system in the pandemic. Coupled with the fact that many more people will be voting by mail this November because of the COVID-19 pandemic, there is the distinct possibiJity that J will not receive my mail-in baJlot in time to mark it and mail it back before the Ballot Receipt Deadline.
7. I believe that besides a person's health, there are few things more important than exercising the right to vote. I do not want to have to make a choice between my heaJth and casting as ballot. I would feel more confident that every ballot will be counted if people have more than one option for returning their mail-in ballot, including having trusted individuals collect those ballots and deliver them directly to the county election's office. Because I fear that my mail-in baJlot could arrive back to the county late because of postal delays out of my control, l would feel more comfortable if I could guarantee its timely arrival by having a friend or family member drop it off at the county. However, I know that the Voter Assistance Ban makes such help a felony and I am unwilling to expose anyone to criminal liability for assisting me, even if that means my mail-in ballot arrives late and goes uncounted.
8. Because of the Signature Verification Requirement, BaJlot Receipt Deadline, and Voter Assistance Ban, l think there is a significant risk that my mail-in ballot will not be counted in November's general election. I hope that the court prevents the enforcement of these laws in November so that I can vote in confidence without exposing myself to grave health risks.
I declare under penalty of perjury that the foregoing is true and correct.

OZ/� Bybrz� BennyAlxander

Appx 44

Exhibit D

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 48 of 65

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

LINDA JANN LEWIS, MADISON LEE, ELLEN SWEETS, BENNY ALEXANDER, GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, and TEXAS ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs,
vs.
RUTH HUGHS, in her official capacity as Texas Secretary of State,
Defendant.

Civil Action No. 5:20-cv-00577
Related to Gloria et al. v. Hughs et al., No. 5:20-cv-00527

DECLARATION OF GEORGE MORGAN IN SUPPORT OF PLAINTIFFS’ MOTION Pursuant to 20 U.S.C. § 1746, I, George Morgan, declare as follows: 1. My name is George “Eddie” Morgan. I am over the age of 18, have personal
knowledge of the facts stated in this declaration, and can competently testify to their truth. 2. I live in Dallas, Texas, and am a registered voter in Dallas County. I am 63 years
old and a member of the Texas Alliance for Retired Americans (“TARA”). I worked as a geriatric nurse until 1989, when I was instructed by my doctor to terminate my employment for disability reasons, as my contact with patients was threatening my health.
3. I have been politically engaged since elementary school, when my classmate’s father was a candidate for city council and ran his campaign out of my parent’s home. I’ve also been involved in the Stonewall Democrats in Dallas, an LGBTQ Democratic organization, and was member of the year in 2014. For the past several years, I have participated in TARA activities

App1x 45

Exhibit E

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 49 of 65
as a member. Those activities include attending protests, encouraging voter engagement, and registering voters. I am also a precinct chair and voter registrar in Dallas County.
4. Participating in elections is extremely important to me. I have voted in all but one election—local, state, and federal—since I turned 18. I was unable to vote in one election because I was hospitalized unexpectedly and I did not have time or opportunity once hospitalized to get a mail-in ballot.
5. I suffer from a condition called Mounier-Kuhn syndrome, a genetic lung disorder resulting in frequent respiratory tract infections and low lung function. I have had this condition since birth, and have been hospitalized, on average, every other year because of bronchiectasis. My condition requires me to do antibiotic breathing treatments three times a day, use inhalers throughout the day, and receive an IV to give me antibodies for pneumonia every month. I typically receive those IV treatments in the hospital, but because of the COVID-19 pandemic, I am now receiving those treatments at home. During the fall, I suffer from sinusitis that exacerbates the symptoms of my condition.
6. Although I now know that I have been able to vote by mail because of my condition, I have never done so in the past because I did not know I was able to, and because I enjoy voting in person. However, because of my health concerns, I have applied to vote by mail for the July run-off election and the November general election for the first time because I am concerned about the risk of contracting COVID-19, to which I am more susceptible to severe complications. Additionally, unless something drastically changes regarding the pandemic, I will also not be able to volunteer on election day or for early voting because it will not be safe to be around so many people who are standing in line and waiting to vote.

App2x 46

Exhibit E

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 50 of 65
7. Because I suffer from Mounier-Kuhn syndrome, my handwriting abilities fluctuate every day depending on my lung function that day. This is because when I am short of breath, I become shaky and fatigued, which makes my handwriting less legible. I am concerned that my mail-in ballot will be rejected because of signature mismatch under the Signature Match Requirement, despite the fact that I personally signed my application to vote by mail, personally signed the ballot carrier envelope for the July run-off, and will personally sign the ballot carrier envelope in November. If it is rejected, I will have no opportunity to fix the problem and make sure my vote is counted; I would simply be disenfranchised. It is unacceptable to me that mail-in ballots can simply be thrown out without the opportunity to cure, particularly when people like me can only vote by mail because of the public health crisis and so can’t avoid the risk of disenfranchisement by voting in person.
8. I am very concerned that with so many more people now relying on the mail system, and not just for mailing ballots, my mail service will be delayed. I am also worried that with Texas’s large senior citizen population there will be many people who, like me, have to vote by mail and the county and USPS will not be able to accommodate the influx. This could result in voters receiving their mail-in ballots very close to the election, with insufficient time to mail those ballots back and guarantee that they arrived to the county by the Ballot Receipt Deadline. In my situation specifically, the USPS worker that serves my senior apartment community was not allowed on the premises in March, April, or May, meaning that delivery of my mail was disrupted. While he has been allowed back in because the state has been reopening, I am concerned that there will be disruptions again in the fall when there is likely to be a resurgence of the COVID-19 pandemic.

App3x 47

Exhibit E

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 51 of 65
9. I believe that besides a person’s health, there is nothing more important than exercising the right to vote. I do not want to have to make a choice between my health and casting as ballot. I would feel more confident that every ballot will be counted if people have more than one option for returning their mail-in ballot, including having trusted individuals collect those ballots and deliver them directly to the county election’s office.
10. Before I received my mail-in ballot for the July run-off, I believed that I would have to pay postage to return that ballot. However, when I received the ballot, I was pleasantly surprised to learn that Dallas County, unlike all other Texas counties that I’m aware of, provides postage prepaid. I am still concerned about others like me—including other TARA members—residing outside of Dallas County, who will have to obtain the necessary postage to mail their ballots in. They will have to independently secure and pay for postage to mail their ballot, but I do not think people should have to spend money to cast their vote.
11. Because of my condition, I have been unable to work for the past 31 years and have lived solely on disability insurance payments and food stamps. Those payments barely cover my necessary expenses to survive. I know for a fact there are many people in the same position in Texas, who are not lucky enough to live in a county that prepays postage, and who will struggle to obtain the necessary postage to return their mail-in ballots because they cannot afford that postage and because they cannot risk their health by leaving their homes to purchase that postage. I also know there are people in West Texas, for example, who are 40 miles from the nearest post office.
12. The laws we are challenging in this case frustrate my hard work in educating voters on voting by mail so that their voices are heard. They also directly threaten my ability to have my vote counted.

App4x 48

Exhibit E

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Appx 49

Exhibit E

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Appx 50

Exhibit F

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Appx 51

Exhibit F

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Appx 52

Exhibit F

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Appx 53

Exhibit F

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Appx 54

Exhibit F

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Appx 55

Exhibit G

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Appx 56

Exhibit G

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Appx 57

Exhibit G

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Appx 58

Exhibit G

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Appx 59

Exhibit H

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Appx 60

Exhibit H

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 64 of 65

Appx 61

Exhibit H

Case 5:20-cv-00577-OLG Document 19-1 Filed 06/17/20 Page 65 of 65

Appx 62

Exhibit H

 
 Case 5:20-cv-00577-OLG Document 26 Filed 06/24/20 Page 1 of 13

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

LINDA JANN LEWIS; MADISON LEE; ELLEN SWEETS; BENNY ALEXANDER; GEORGE MORGAN, VOTO LATINO, TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; and TEXAS ALLIANCE OF RETIRED AMERICANS,
Plaintiffs,
v.
RUTH HUGHS, in her official capacity as the Texas Secretary of State,
Defendant.

CIVIL ACTION NO. 5:20-cv-00577-OLG

THE TEXAS SECRETARY OF STATE’S REPLY IN SUPPORT OF HER MOTION TO DISMISS

Case 5:20-cv-00577-OLG Document 26 Filed 06/24/20 Page 2 of 13 TABLE OF CONTENTS
Table of Contents .............................................................................................................................................. ii Introduction ........................................................................................................................................................ 1 Argument ............................................................................................................................................................1
I. Sovereign Immunity Bars Plaintiffs’ Claims......................................................................................1 II. Plaintiffs Lack Standing....................................................................................................................2 III. Plaintiffs Fail to State a Claim .........................................................................................................6
A. Plaintiffs’ Right to Vote Is Not Implicated by a Non-Existent “Postage Tax” ..................6 B. The Deadline for Returning Ballots Is Reasonable and Constitutional ................................9 C. Failing to Verify Signatures Would Invite Election Fraud......................................................9 D. Ballot Harvesting Is Not a Constitutional Right ....................................................................10 Conclusion ........................................................................................................................................................10
ii

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INTRODUCTION The Court should dismiss Plaintiffs’ effort to replace the Texas Election Code with government-by-injunction. Plaintiffs challenge four commonsense provisions of Texas law that have been widely adopted in other States. First, they challenge Texas’s refusal to subsidize postage for mailin ballots. That cannot burden anyone’s right to vote because the Postal Service delivers ballots without any postage. Second, Plaintiffs challenge the requirement that ballots be received by the day after the election. Texas’s deadline, which is significantly more lenient than many other States’, serves important interests, including letting local officials process and count ballots quickly. Third, Plaintiffs argue the signature-verification process should be more narrowly tailored. But narrow tailoring is not required for a reasonable and nondiscriminatory rule preventing election fraud. Fourth, Plaintiffs demand the State allow strangers to handle a voter’s mail-in ballot. The State cannot do so without encouraging voter fraud and undue influence.
ARGUMENT I. Sovereign Immunity Bars Plaintiffs’ Claims
Plaintiffs acknowledge that the Secretary “does not personally” enforce the challenged laws, and they do not argue the Secretary’s employees do either. ECF 19 at 3. Instead, they suggest the Secretary has a state-law power to coerce local officials. But the Secretary cited multiple state cases interpreting the Secretary’s state-law powers narrowly. See ECF 17 at 3–4. Plaintiffs ignore these authorities.1
Even if the Secretary had the authority Plaintiffs claim, sovereign immunity would bar the Court from ordering her to fulfill state-law obligations, see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984), or act in her official capacity, see ECF 17 at 4. “[A]n injunction ordering the
1 Plaintiffs cite a Fifth Circuit opinion staying an injunction against the Secretary on the merits rather than on jurisdictional grounds. See TDP v. Abbott, 961 F.3d 389, No. 20-50407, 2020 WL 2982937, at *8 (5th Cir. June 4, 2020). The court’s preliminary and tentative discussion of Ex parte Young did not consider these state cases and was based on an overly broad reading of OCA-Greater Houston. See ECF 17 at 10 n.4.
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Secretary to promulgate a rule” would be “extraordinary relief ” that “raised serious federalism concerns, and it is doubtful that a federal court would have authority to order it.” Jacobson v. Fla. Sec’y of State, 957 F.3d 1193, 1211–12 (11th Cir. 2020). Sovereign immunity bars a claim for which “the requested relief . . . . would require us to order the Secretary to take various forms of affirmative action.” Painter v. Shalala, 97 F.3d 1351, 1359 (10th Cir. 1996). In response, Plaintiffs mischaracterize four cases that actually considered prohibitory injunctions as approving “mandatory injunctions.” ECF 19 at 4 n.3.2 Plaintiffs also cite two cases as approving “affirmative obligations” even though they did not consider the issue. ECF 19 at 4 n.4.3 “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004).
II. Plaintiffs Lack Standing No Plaintiff has plausibly alleged a certainly impending injury in fact. Plaintiffs argue only one
Plaintiff needs standing, see ECF 19 at 5, but the Court should streamline this case by dismissing any Plaintiff who lacks standing. See We Are Am./Somos Am., Coal. of Ariz. v. Maricopa Cty. Bd. of Supervisors, 809 F. Supp. 2d 1084, 1092–93 (D. Ariz. 2011). An injunction cannot cover multiple Plaintiffs unless each one has standing. See Lewis v. Casey, 518 U.S. 343, 357 (1996) (holding a remedy must “be limited to the inadequacy that produced the injury in fact that the plaintiff has established”).
Injury in Fact: For Article III standing, a plaintiff’s injury must be “certainly impending.”
2 See Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (“restrained from enforcing”); Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 512 (5th Cir. 2017) (“injunctive relief against enforcement”); Green Valley Special Util. Dist. v. Walker, 324 F.R.D. 176, 180 (W.D. Tex. 2018) (“enjoin the PUC Officials from decertifying”); Hall v. Louisiana, 983 F. Supp. 2d 820, 826 (M.D. La. 2013) (“forbidding Defendants from enforcing”). 3 See Thomas ex rel. D.M.T. v. Sch. Bd. St. Martin Parish, 756 F.3d 380 (5th Cir. 2014) (not considering sovereign immunity because the defendants were local officials); Milliken v. Bradley, 433 U.S. 267, 288– 89 (1977) (considering whether relief was “retroactive,” not whether it was mandatory). To the extent the Milliken injunction was mandatory, it could have been easily restated as a prohibitory injunction, so there was no reason to litigate the issue. That is not true here.
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Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Plaintiffs’ challenges to the ballot-receipt deadline and the signature-verification requirement, for example, require not only that (1) they will attempt to vote by mail, but also (2) that local officials will refuse to count their ballots because of those rules. Plaintiffs’ response argues that they face a “high risk for . . . disenfranchisement,” ECF 19 at 6, but that is nowhere in their complaint. Recognizing the insufficiency of their complaint, Plaintiffs repeatedly cite declarations, see ECF 19 at 6–7, but declarations attached to a response brief cannot take the place of plausible factual allegations.4
Plaintiffs do not dispute that less than 2% of mail-in ballots were rejected in 2018. See ECF 19 at 7–8 & n.6. That is not even an “objectively reasonable likelihood,” which is itself insufficient for Article III standing. Clapper, 568 U.S. at 410. Also, the possibility someone else’s ballot might be rejected cannot satisfy Plaintiffs’ obligation to provide “Plaintiff-specific” allegations. Stringer v. Whitley, 942 F.3d 715, 722 (5th Cir. 2019).5
The Organizational Plaintiffs do not allege facts establishing that they have “members” within the meaning of the associational standing test. See ECF 17 at 6. Plaintiffs assert “that the Organizational Plaintiffs are membership organizations,” ECF 19 at 8–9, but that is a legal conclusion. Moreover, “the complaint did not identify any member of the” Organizational Plaintiffs who was injured. Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.); see ECF 17 at 6. Attacking a straw man, Plaintiffs insist “individual participation of an organization’s members is” unnecessary. ECF 19
4 “Where, as here, the movant mounts a ‘facial attack’ on jurisdiction based only on the allegations in the complaint, the court simply considers the sufficiency of the allegations in the complaint because they are presumed to be true.” Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 533 (5th Cir. 2016) (quotation omitted); see also In re Apple iPhone Antitrust Litig., No. 4:11-cv-6714, 2013 WL 4425720, at *6–7 (N.D. Cal. Aug. 15, 2013) (dismissing because the court granted a motion to dismiss because “Plaintiffs’ allegations” were “insufficient to establish Article III standing” and refusing to consider “declarations” except for “whether leave to amend should be granted”). 5 Plaintiffs argue they face increased risk of rejected ballots, see ECF 19 at 8, but their complaint does not allege what that risk is. Even if Plaintiffs were an order of magnitude more likely to have their ballots rejected (which seems implausible), a 20% chance of injury is not “certainly impending.”
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at 8. No one is arguing that the Organizational Plaintiffs’ supposed members need to be joined as plaintiffs. Plaintiffs should simply allege (and later prove) the identity of injured members. An unpublished opinion in which the court was “aware of no precedent holding that an association must set forth the name of a particular member in its complaint,” Hancock Cty. Bd. of Supervisors v. Ruhr, 487 F. App’x 189, 198 (5th Cir. 2012), is irrelevant because the Secretary has identified multiple cases recognizing exactly that requirement. See ECF 17 at 6. Plaintiffs do not distinguish them.
Plaintiffs claim to have direct organizational standing on the theory that they “divert resources” in response to Texas law. See ECF 19 at 9. “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.’ ” ECF 17 at 8 (quoting La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)); see also Zimmerman v. City of Austin, 881 F.3d 378, 390 (5th Cir. 2018). In this case, Plaintiffs claim to be avoiding injuries to their interests in voter turnout, see ECF 19 at 9–10, but “[t]he ‘abstract social interest in maximizing voter turnout . . . cannot confer Article III standing.’ ” ECF 17 at 7 (quoting Fair Elections Ohio v. Husted, 770 F.3d 456, 461 (6th Cir. 2014)); see also Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018) (“generalized partisan preferences”).
Instead of responding to those cases, Plaintiffs cite OCA-Greater Houston. See ECF 19 at 10– 11. Although the plaintiff in OCA-Greater Houston had “a ‘Get Out the Vote’ initiative,” no party raised—and the court did not decide—whether that represented more than an abstract social interest in voter turnout. 867 F.3d 604, 609 (5th Cir. 2017). “When a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144–45 (2011). The Fifth Circuit is “always chary to create a circuit split” and avoids reading its precedents to needlessly conflict with the rulings of other courts. Hoyt v. Lane Constr. Corp., 927 F.3d 287, 296 n.3 (5th Cir. 2019); see also Gahagan v. USCIS, 911 F.3d 298, 304 (5th Cir. 2018) (“always chary to create a circuit split . . . including
4

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when applying the rule of orderliness”). Even if Plaintiffs had a cognizable interest in voter turnout, they have not “plausibly allege[d]
that the challenged statutes make their [turnout-related] ‘activities more difficult.’ ” ECF 17 at 7 (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). Instead of identifying any activities that the challenged laws prevent them from undertaking, Plaintiffs speculate that their activities might be less successful. See ECF 19 at 9–10. But “[f]rustration of an organization’s objectives is the type of abstract concern that does not impart standing.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161–62 (D.C. Cir. 2005) (quotation omitted).
Causation and Redressability: According to Plaintiffs, they “do not challenge local election officials’ decisions, but instead, the election laws the State requires them to follow.” ECF 19 at 12. Plaintiffs forget that “the coercive impact of the statute” is “distinct from the coercive power of state officials.” Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en banc). Thus, Plaintiffs’ real complaint is with local officials’ application of state law, not any action by the Secretary.
Plaintiffs overstate the Secretary’s authority. See ECF 19 at 12–13 n.11. She “may order” a local official to alter his conduct only if the local official’s conduct “impedes the free exercise of a citizen’s voting rights.” Tex. Elec. Code 31.005(b). Because neither compliance nor non-compliance with the challenged provisions necessarily “impedes” anyone’s voting rights, the Secretary cannot invoke Section 31.005 to enforce the challenged provisions. Even if Section 31.005 applied here, it would “merely give[ ] discretion to the Secretary to take action.” City of San Antonio v. Edwards Aquifer Auth., No. 5:12-cv-620-OLG, 2014 WL 12495605, at *6 (W.D. Tex. Mar. 31, 2014). That in insufficient to “subject [the Secretary] to liability as a party defendant in this case.” Id.6
6 As discussed above, TDP’s preliminary conclusion that OCA-Greater Houston was an “obstacle” to this argument, TDP, 2020 WL 2982937, at *5–6, read the case too broadly. See supra n.1. OCA-Greater Houston is distinguishable for the reasons the Secretary already briefed. See ECF 17 at 10 n.4.
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Statutory Standing: The Organizational Plaintiffs contend they need not satisfy third-party standing because they have associational and organizational standing. See ECF 19 at 14–16. First, Plaintiffs have not satisfied those doctrines for the reasons explained above. Second, binding precedent forecloses Plaintiffs’ suggestion that organizations are subject to less stringent rules of standing. Compare Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982) (“same inquiry”), with ECF 19 at 15. Third, the limitations on third-party standing apply to organizations, regardless of whether they satisfy Article III. See, e.g., Cmty. Fin. Servs. Ass’n of Am., Ltd. v. FDIC, No. 14-cv-953, 2016 WL 7376847, at *12 (D.D.C. Dec. 19, 2016).
The rule against third-party standing is an independent requirement. See, e.g., Sessions v. MoralesSantana, 137 S. Ct. 1678, 1687, 1689 (2017) (applying the third-party standing test to a plaintiff facing his own injury in fact because his legal theory depended on a third party’s “right to the equal protection of the laws”). Plaintiffs argue the Fifth Circuit has held otherwise, but in the cases Plaintiffs cite, the court simply allowed associational claims to proceed, without considering the rule against third-party standing. See ECF 19 at 14–15 & n.12. They therefore do not “constitute precedents” on that issue. Cooper Indus., 543 U.S. at 170. As the Second Circuit has held, an associational plaintiff “does not have standing to assert the rights of its members” because “the rights [Section 1983] secures [are] personal to those purportedly injured.” League of Women Voters of Nassau Cty. v. Nassau Cty. Bd. of Sup’rs, 737 F.2d 155, 160 (2d Cir. 1984). III. Plaintiffs Fail to State a Claim
A. Plaintiffs’ Right to Vote Is Not Implicated by a Non-Existent “Postage Tax” There is no “postage tax.” The State does not require any voter to purchase postage, and the Postal Service will deliver a ballot without a stamp. See ECF 17 at 12–13. This is fatal to Plaintiffs’ claim. They cannot challenge a requirement that does not exist. Plaintiffs do not address this point at all. Their silence should be taken as a concession. Moreover, even if there were a “postage tax,” the
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Tax Injunction Act would prohibit an injunction against its enforcement. See ECF 17 at 13 (citing 28 U.S.C. § 1341). Again, Plaintiffs offer no response.
“[E]ven if postage were a barrier to voting by mail, it would not be a barrier to voting.” ECF 17 at 12; see McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807 (1969) (distinguishing “the right to vote” from the “claimed right to receive absentee ballots.”). In Texas Democratic Party v. Abbott, the plaintiffs challenged a statute that prevented them from voting by mail. 961 F.3d 389, No. 20-50407, 2020 WL 2982937 (5th Cir. June 4, 2020). The Fifth Circuit concluded that “the right to vote [wa]s not ‘at stake’ ” because “[t]he plaintiffs [we]re welcome and permitted to vote [in other ways], and there is no indication that they ‘[we]re in fact absolutely prohibited from voting by the State.’ ” Id. at *10 (quoting McDonald, 394 U.S. at 807, 808 n.7). Here, Plaintiffs do not assert “the right to vote,” or even the “claimed right to receive absentee ballots.” McDonald, 394 U.S. at 807. They assert the claimed right to receive absentee ballots with stamps. This is not a constitutional entitlement. Plaintiffs argue Anderson-Burdick displaced McDonald, see ECF 19 at 21, but the Fifth Circuit already rejected that argument. TDP, 2020 WL 2982937, at *12.
Even within the Anderson-Burdick framework, Plaintiffs do not plausibly allege that the “postage tax” imposes a severe burden. The cost of a stamp is de minimis. See ECF 17 at 14. Plaintiffs claim the “postage tax” could cause “disenfranchise[ment],” ECF 19 at 18, but even if the Postal Service required stamps for ballots, the legally relevant burden is the cost of complying with the supposed “postage tax” (fifty-five cents), not the consequence of not complying. See ECF 17 at 14.
Plaintiffs’ contention that the Constitution requires States to subsidize postage is inconsistent with the laws of thirty-four States. See ECF 17 at 13. Plaintiffs argue the Secretary cannot “rely on [similar provisions] in other states” because the “postage tax” might “interact[ ] with other voting practices.” ECF 19 at 23 (quoting Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 665 (6th Cir. 2016)). But Plaintiffs do not explain how not subsidizing postage could “interact” with other
7

Case 5:20-cv-00577-OLG Document 26 Filed 06/24/20 Page 10 of 13
provisions or how that approach would be consistent with the need to “analyze the challenged Texas provisions separately.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 388 (5th Cir. 2013). Moreover, Plaintiffs ignore the Sixth Circuit’s later opinion in Michigan State, which clarified that the prevalence of a challenged practice in other States is highly relevant. See 749 F. App’x 342, 346 (6th Cir. 2018) (“most American states”); id. at 355 (Kethledge, J., concurring) (“Forty other states”).
Plaintiffs’ poll-tax claim also fails. “The indirect cost” of buying a stamp “does not constitute a poll tax.” Veasey v. Abbott, 830 F.3d 216, 266 (5th Cir. 2016) (en banc); ECF 17 at 15. Certainly a “cost” cannot be a poll tax when it is not “deliberately imposed by the State.” Veasey v. Perry, 135 S. Ct. 9, 12 (2014) (Ginsburg, J., dissenting). Plaintiffs do not address this argument either.
Plaintiffs argue “undue burden claims necessarily require factual development to determine whether the State’s interests outweigh the burden on voters.” ECF 19 at 20. But courts often dismiss Anderson-Burdick claims at the pleading stage. In LULAC v. Abbott, for example, this Court granted a motion to dismiss because “alleged First and Fourteenth Amendment associational harms . . . are justified by Texas’ interest in maximizing its electoral power by having its Presidential Electors vote in a unified bloc.” 369 F. Supp. 3d 768, 781–84 (W.D. Tex. 2019), aff’d, 951 F.3d 311 (5th Cir. 2020).7
States need not “demonstrate[e] empirically the objective effects” of their election laws. Id. Courts “weigh [state] interests without discovery.” Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 719 (4th Cir. 2016); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997) (refusing to require “require elaborate, empirical verification of the weightiness of the State’s asserted justifications”); Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986) (rejecting “endless court battles over the sufficiency of the ‘evidence’ marshaled by a State”).
7 See also, e.g., Kennedy v. Pablos, No. 1:16-cv-1047, 2017 WL 2223056, at *3–5 (W.D. Tex. May 18, 2017); Faas v. Cascos, 225 F. Supp. 3d 604, 607 (S.D. Tex. 2016); Meyer v. Texas, No., 4:10-cv-3860, 2011 WL 1806524, at *3–7 (S.D. Tex. May 11, 2011).
8

Case 5:20-cv-00577-OLG Document 26 Filed 06/24/20 Page 11 of 13
B. The Deadline for Returning Ballots Is Reasonable and Constitutional Texas has a ballot-receipt deadline because “local officials [need] time to process and count ballots.” ECF 17 at 16. Plaintiffs respond that the State allows overseas ballots to arrive later. See ECF 19 at 18. Of course, the smaller number of overseas voters are not similarly situated to domestic voters and pose entirely different issues for election administration. That is sufficient justification given the minimal burden of mailing a ballot on time. The Secretary’s motion to dismiss also identified multiple legal flaws in Plaintiffs’ equal protection claim. See ECF 17 at 19–20. Plaintiffs’ offer only one response: that their equal protection claim should be “evaluated under Anderson-Burdick.” ECF 19 at 24. If so, then Plaintiffs’ equal protection challenge to the ballot-receipt deadline adds nothing to their Anderson-Burdick challenge. The former fails for the same reasons the latter does. But even if the Anderson-Burdick claim survives, the equal protection claim should be dismissed or struck as redundant. See Fed. R. Civ. P. 12(f). C. Failing to Verify Signatures Would Invite Election Fraud “[S]tate regulation to counter voter registration fraud should not be hastily overturned.” Voting for Am., 732 F.3d at 396. Texas’s signature-verification requirement, a common tool for combatting fraud, deserves the same deference. See ECF 17 at 21. “There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008) (plurality). Plaintiffs argue the law is not narrowly tailored because Texas could still prevent fraud if it provided “a cure process.” ECF 19 at 18–19. Anderson-Burdick does not require that “every voting regulation . . . be narrowly tailored.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). The signature-verification requirement is “reasonable” and “nondiscriminatory,” so the State’s undisputed interest in preventing fraud is sufficient to support the law. Id. at 434. For their equal protection claim, Plaintiffs argue for applying “the Anderson-Burdick assessment.” ECF 19 at 25. As explained above, doing so would support dismissal. See supra Part III.B.
9

Case 5:20-cv-00577-OLG Document 26 Filed 06/24/20 Page 12 of 13
Plaintiffs’ due process claim cannot survive under binding Fifth Circuit precedent. In Johnson v. Hood, “voters whose ballots were rejected” argued that they “had been deprived of due process of law” because the procedures had been “arbitrary.” 430 F.2d 610, 611–12 (5th Cir. 1970) (per curiam). The Fifth Circuit rejected their claim because “even an improper denial of the right to vote for a candidate for a state office achieved by state action is not a denial of a right of property or liberty secured by the due process clause.” Id. at 612 (quotation omitted). Plaintiffs do not attempt to distinguish Johnson. Non-binding authority to the contrary is irrelevant. See ECF 19 at 26.
D. Ballot Harvesting Is Not a Constitutional Right Plaintiffs bring an Anderson-Burdick claim against the prohibition on ballot harvesting, but they ignore the State’s interests supporting the law. See ECF 17 at 25–27. Plaintiffs assert “that the State’s interest in enforcing the Ban ‘cannot justify disenfranchising voters who require assistance to timely deliver their ballots,’ especially since Texas laws already criminalizes any exercise of undue influence or voting fraud that might be captured by the Ban.” ECF 19 at 19 (quoting ECF 1 ¶ 120). That “bare assertion[ ]” is not a factual allegation “entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). States may take “preventive measures” against fraud. Voting for Am., 732 F.3d at 394–95 (“Texas’s chosen means to avert fraudulent voter registrations by requiring state residency and county appointment for VDRs is sufficiently tailored.”); see ECF 17 at 26–27.8
CONCLUSION The Secretary respectfully requests that the Court dismiss Plaintiffs’ Complaint.9
8 Plaintiffs complain that the Secretary’s motion does not discuss the pandemic, but they concede the pandemic “is not the basis for Plaintiffs’ claims.” ECF 17 at 1. Plaintiffs’ numerous legal errors prevented the Secretary from wasting pages on facts that do not form “the basis for Plaintiffs’ claims.” 9 Plaintiffs concede that they did not allege a due process challenge to the prohibition on ballot harvesting—despite an incorrect heading in their complaint—and offer to “amend their complaint at the Court’s discretion.” ECF 19 at 25 n16; see ECF 17 at 27. For the avoidance of ambiguity, the Court should dismiss the phantom claim or require amendment.
10

Case 5:20-cv-00577-OLG Document 26 Filed 06/24/20 Page 13 of 13

Date: June 24, 2020
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General

Respectfully submitted.
/s/Patrick K. Sweeten PATRICK K. SWEETEN Associate Deputy for Special Litigation
TODD LAWRENCE DISHER Deputy Chief, Special Litigation Unit
WILLIAM T. THOMPSON Special Counsel
KATHLEEN HUNKER Special Counsel
MICHAEL R. ABRAMS Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC-009) Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 patrick.sweeten@oag.texas.gov todd.disher@oag.texas.gov will.thompson@oag.texas.gov kathleen.hunker@oag.texas.gov michael.abrams@oag.texas.gov
COUNSEL FOR THE TEXAS SECRETARY OF STATE

CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on June 24, 2020, and that all counsel of record were served by CM/ECF.
/s/Patrick K. Sweeten PATRICK K. SWEETEN

11

 
 Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 1 of 10
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:20−cv−00577−OLG

Lewis et al v. Hughs, Texas Secretary of State Assigned to: Chief Judge Orlando L. Garcia Related Case: 5:20−cv−00527−OLG Cause: 42:1983 Civil Rights Act Plaintiff
Linda Jann Lewis

Date Filed: 05/11/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question
represented by Aria C. Branch Perkins Coie LLP 700 13th Street, NW, Suite 600 Washington, DC 200053960 202−654−6200 Fax: 202−654−6211 Email: abranch@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann Perkins Coie LLP 1888 Century Park East, Suite 1700 Los Angeles, CA 90067−1721 310−788−3245 Fax: 310−843−1244 Email: gkuhlmann@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton Perkins Coie, LLP 1201 Third Ave., Suite 4900 Seattle, WA 98101−3099 206−359−8741 Fax: 206−359−9741 Email: khamilton@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias Perkins Coie LLP 700 Thirteenth Street N.W. − Suite 600 Washington, DC 2005−3960 (202) 354−6200 Fax: (202) 654−6211 Email: melias@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack Perkins Coie LLP 1029 West Third A venue, Suite 300 Anchorage, AK 99501 907−263−6990 Fax: 907−276−3108 Email: sschirack@perkinscoie.com LEAD ATTORNEY PRO HAC VICE

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 2 of 10

Plaintiff Madison Lee

ATTORNEY TO BE NOTICED
William (Ben) Stafford Perkins Coie LLP 1201 Third Avenue, Ste. 4900 Seattle, WA 98101−3099 (206) 359−6217 Fax: (206) 359−7217 Email: wstafford@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton Perkins Coie LLP 500 North Akard Street Suite 3300 Dallas, TX 75201 214−259−4951 Fax: 214−965−7752 Email: showton@perkinscoie.com ATTORNEY TO BE NOTICED
represented by Aria C. Branch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 3 of 10

Plaintiff Ellen Sweets
Plaintiff Benny Alexander

represented by Aria C. Branch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED
represented by Aria C. Branch Perkins Coie LLP 700 13th Street, NW, Suite 600 Washington, DC 20005*3960 202−654−6200 Fax: 202−654−6211 Email: abranch@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 4 of 10

Plaintiff George Morgan

Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED
represented by Aria C. Branch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 5 of 10

Plaintiff Voto Latino
Plaintiff Texas State Conference of the National Association for the Advancement of Colored People

represented by Aria C. Branch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED
represented by Aria C. Branch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 6 of 10

Plaintiff Texas Alliance for Retired Americans

ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED
represented by Aria C. Branch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gillian C. Kuhlmann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Langberg Schirack (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William (Ben) Stafford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler M. Howton (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Ruth Hughs, Texas Secretary of State

represented by

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 7 of 10
Patrick K. Sweeten Texas Attorney General 300 West 15th St. − 9th Flr Austin, TX 78701 (512) 936−1307 Fax: 512/499−0712 Email: Patrick.Sweeten@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Thomas Thompson Office of the Attorney General Special Litigation Unit PO Box 12548 (MC−009) Austin, TX 78711−2548 512−936−2567 Fax: 512−936−0545 Email: Will.Thompson@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 ATTORNEY TO BE NOTICED
Todd Lawrence Disher Office of the Attorney General of Texas P.O. Box 12548 Austin, TX 78711 512−936−2266 Email: todd.disher@oag.texas.gov ATTORNEY TO BE NOTICED

Date Filed 05/11/2020
05/11/2020 05/11/2020 05/11/2020 05/11/2020

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ( Filing fee $ 400 receipt number 0542−13554662), filed by Voto Latino, Ellen Sweets, Texas State Conference of the National Association for the Advancement of Colored People, Madison Lee, Texas Alliance for Retired Americans, Benny Alexander, Linda Jann Lewis, George Morgan. (Attachments: # 1 Civil Cover Sheet)(Howton, Skyler) (Entered: 05/11/2020)
2 REQUEST FOR ISSUANCE OF SUMMONS by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Howton, Skyler) (Entered: 05/11/2020)
3 RULE 7 DISCLOSURE STATEMENT filed by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Howton, Skyler) (Entered: 05/11/2020)
Case Directly Assigned to Chief Judge Orlando L. Garcia. 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: 05/11/2020)
If ordered by the court, all referrals will be assigned to Magistrate Judge Farrer (wg) (Entered: 05/11/2020)

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 8 of 10

05/11/2020
05/11/2020
05/11/2020
05/11/2020
05/11/2020
05/11/2020
05/11/2020 05/11/2020 05/11/2020 05/11/2020 05/11/2020 05/19/2020
05/19/2020

4 MOTION to Appear Pro Hac Vice by Skyler M. Howton for MARC E. ELIAS ( Filing fee $ 100 receipt number 0542−13556180) by on behalf of Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 05/11/2020)
5 MOTION to Appear Pro Hac Vice by Skyler M. Howton for ARIA C. BRANCH ( Filing fee $ 100 receipt number 0542−13556225) by on behalf of Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 05/11/2020)
6 MOTION to Appear Pro Hac Vice by Skyler M. Howton for KEVIN J. HAMILTON ( Filing fee $ 100 receipt number 0542−13556300) by on behalf of Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 05/11/2020)
7 MOTION to Appear Pro Hac Vice by Skyler M. Howton for WILLIAM B. STAFFORD ( Filing fee $ 100 receipt number 0542−13556345) by on behalf of Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 05/11/2020)
8 MOTION to Appear Pro Hac Vice by Skyler M. Howton for GILLIAN KULHMANN ( Filing fee $ 100 receipt number 0542−13556375) by on behalf of Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 05/11/2020)
9 MOTION to Appear Pro Hac Vice by Skyler M. Howton for SARAH L. SCHIRACK ( Filing fee $ 100 receipt number 0542−13556406) by on behalf of Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 05/11/2020)
10 Pro Hac Vice Letter forwarded to atty: Gillian Kuhlmann. (wg) (Entered: 05/11/2020)
11 Summons Issued as to Ruth Hughs, Texas Secretary of State. (wg) (Entered: 05/11/2020)
12 Pro Hac Vice Letter forwarded to attorney: Sarah Langberg Schirack. (wg) (Entered: 05/11/2020)
13 Pro Hac Vice Letter forwarded to atty: Marc E. Elias & Aria C. Branch. (wg) (Entered: 05/11/2020)
14 Pro Hac Vice Letter forwarded to atty: Kevin J. Hamilton & William B. Stafford. (wg) (Entered: 05/11/2020)
Text Order GRANTING 4 Motion to Appear Pro Hac Vice for MARC E. ELIAS. 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. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/19/2020)
Text Order GRANTING 5 Motion to Appear Pro Hac Vice for ARIA C. BRANCH. 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. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 9 of 10

05/19/2020 05/19/2020 05/19/2020 05/19/2020 05/20/2020 06/03/2020 06/03/2020 06/04/2020 06/17/2020 06/17/2020 06/18/2020

associated with this entry.) (ju) (Entered: 05/19/2020)
Text Order GRANTING 6 Motion to Appear Pro Hac Vice for KEVIN J. HAMILTON. 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. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/19/2020)
Text Order GRANTING 7 Motion to Appear Pro Hac Vice for WILLIAM B. STAFFORD. 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. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/19/2020)
Text Order GRANTING 8 Motion to Appear Pro Hac Vice for GILLIAN KULHMANN. 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. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/19/2020)
Text Order GRANTING 9 Motion to Appear Pro Hac Vice for SARAH L. SCHIRACK. 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. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/19/2020)
15 Acknowledgment of Service returned by Voto Latino, Ellen Sweets, Texas State Conference of the National Association for the Advancement of Colored People, Madison Lee, Texas Alliance for Retired Americans, Benny Alexander, Linda Jann Lewis, George Morgan. Ruth Hughs, Texas Secretary of State served on 5/13/2020, answer due 6/12/2020. (Howton, Skyler) (Entered: 05/20/2020)
16 Unopposed MOTION for Leave to Exceed Page Limitation on Motion to Dismiss by Ruth Hughs, Texas Secretary of State. (Attachments: # 1 Proposed Order)(Thompson, William) (Entered: 06/03/2020)
17 MOTION to Dismiss by Ruth Hughs, Texas Secretary of State. (Thompson, William) (Entered: 06/03/2020)
Text Order GRANTING 16 Unopposed Motion for Leave to File Excess Pages. IT IS THEREFORE ORDERED that the Secretary may file a motion to dismiss that doesnot exceed 27 pages entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/04/2020)
18 Plaintiff's Unopposed MOTION for Leave to Exceed Page Limitation by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 06/17/2020)
19 Plaintiff's Memorandum in Opposition to Motion, filed by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino, re 17 MOTION to Dismiss filed by Defendant Ruth Hughs, Texas Secretary of State (Attachments: # 1 Appendix)(Howton, Skyler). (Entered: 06/17/2020)
Text Order GRANTING 18 Plaintiff's Unopposed Motion for Leave to File Excess Pages. IT IS THEREFORE ORDERED that the Plaintiffs may file an opposition that does not exceed 27 pages entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/18/2020)

Case: 5:20-cv-577 As of: 07/06/2020 06:43 PM CDT 10 of 10

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20 MOTION for Leave to Exceed Page Limitation for Motion Seeking Preliminary Injunction, by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 − Plaintiffs' Motion for Preliminary Injunction and Memorandum of Law in Support, # 2 − Proposed Order on Motion for Preliminary Injunction, # 3 − Proposed Order on Motion for Leave to Exceed Page Limit)(Howton, Skyler) (Entered: 06/22/2020)
21 APPENDIX by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Ex 1−Declaration of Aria C. Branch, # 2 Ex A−Expert Report of Catherine L. Troisi, # 3 Ex B−Texas Case Counts−COVID−19, # 4 Ex C−Expert Report of Drs. M. Herron and D. Smith, # 5 Ex D−Drive−thrus and free pencils: Texas plans for July elections with in−person voting, # 6 Ex E−Recommendations for Election Polling Locations, # 7 Ex F−Quick Facts − Texas, # 8 Ex G−Percent Voting by Age, Gender, Educational Attainment, Race, and Family Income, # 9 Ex H−NV 2020 Primary Election Turnout, # 10 Ex I−NV 2016 Primary Election Turnout, # 11 Ex J−Early Voting − November 2, 2018, # 12 Ex K−Declaration of Plaintiff Linda Jan Lewis, # 13 Ex L−Declaration of Plaintiff Madison Lee, # 14 Ex M−Declaration of Maria Teresa Kumar, # 15 Ex N−Declaration of Gary Bledsoe, # 16 Ex O−Declaration of Judy Bryant, # 17 Ex P−Declaration of Plaintiff George Morgan, # 18 Ex Q−King County Prepaid Postage Pilot: Summary, # 19 Ex R−Early Voting by Mail, # 20 Ex S−These Federal Agencies Have Seen the Most COVID−19 Deaths, # 21 Ex T−Handbook for Election Judges and Clerks 2020, # 22 Ex U−Declaration of Daryl Jones, # 23 Ex V−Declaration of Barbara Rojas, # 24 Ex W−Expert Report of Dr. Linton A. Mohammed, # 25 Ex X−Declaration of Plaintiff Ellen Sweets, # 26 Ex Y−Declaration of Plaintiff Benny Alexander, # 27 Ex Z−Declaration of Joanna Marie Green, # 28 Ex AA−Declaration of Terrence William Tull, # 29 Ex AB−Declaration of Juanita E. McAdoo, # 30 Ex AC−Declaration of Prentiss Hogan)(Howton, Skyler) (Entered: 06/22/2020)
22 NOTICE of Attorney Appearance by Patrick K. Sweeten on behalf of Ruth Hughs, Texas Secretary of State. Attorney Patrick K. Sweeten added to party Ruth Hughs, Texas Secretary of State(pty:dft) (Sweeten, Patrick) (Entered: 06/23/2020)
23 NOTICE of Attorney Appearance by Todd Lawrence Disher on behalf of Ruth Hughs, Texas Secretary of State. Attorney Todd Lawrence Disher added to party Ruth Hughs, Texas Secretary of State(pty:dft) (Disher, Todd) (Entered: 06/23/2020)
24 NOTICE of Attorney Appearance by Michael Abrams on behalf of Ruth Hughs, Texas Secretary of State. Attorney Michael Abrams added to party Ruth Hughs, Texas Secretary of State(pty:dft) (Abrams, Michael) (Entered: 06/23/2020)
25 DEFENDANT'S MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Preliminary Injunction by Ruth Hughs, Texas Secretary of State. (Attachments: # 1 Proposed Order)(Sweeten, Patrick) (Entered: 06/23/2020)
26 DEFENDANT'S REPLY to Response to Motion, filed by Ruth Hughs, Texas Secretary of State, re 17 MOTION to Dismiss filed by Defendant Ruth Hughs, Texas Secretary of State (Sweeten, Patrick) (Entered: 06/24/2020)
27 ORDER That the Court hereby VACATES the June 29, 2020 deadline for theSecretary's response to Plaintiffs' Motion for Preliminary Injunction. The Court ORDERS the parties to confer and submit proposed scheduling orders for discovery and briefing for the Motion for Preliminary Injunction by Thursday, July 2, 2020. The Court will issue a scheduling order, including resetting the Secretary's response deadline, after consideration of the parties' submissions.Signed by Chief Judge Orlando L. Garcia. (wg) (Entered: 06/26/2020)
28 Scheduling Recommendations −−JOINT SCHEDULING PROPOSAL−− by Benny Alexander, Madison Lee, Linda Jann Lewis, George Morgan, Ellen Sweets, Texas Alliance for Retired Americans, Texas State Conference of the National Association for the Advancement of Colored People, Voto Latino. (Attachments: # 1 Proposed Order)(Howton, Skyler) (Entered: 07/02/2020)