UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JESSIE GLORIA, LUIS BOTELLO-FAZ,

NICOLAS MACRI, PAT GRANT, JENNIFER 

RAMOS, and ISAIAH RODRIGUEZ,

Plaintiffs,

v.

RUTH HUGHS, in her official capacity as Texas 

Secretary of State

Defendant.

Civil Action

Case No. 5:20-cv-00527-OLG

PLAINTIFFS’ OPPOSED MOTION FOR RECONSIDERATION OF ORDER STAYING 

PROCEEDINGS

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Plaintiffs respectfully move this Court to reconsider its decision to enter a stay in this case 

pending the outcome of the appeals in Texas Democratic Party v. Abbott, No. 20-50407 (“TDP”). 

In support of this motion, Plaintiffs submit as follows.

RELEVANT BACKGROUND

On June 11, this Court sua sponte stayed these proceedings “pending a decision on the 

merits by the Fifth Circuit” in TDP, “and the outcome of any appeal thereof.” ECF No. 14 at 1. As 

this Court recognized, “[t]he issue in this case is narrow: whether § 82.003 of the Texas Election

Code, on its face, violates the Twenty-Sixth Amendment to the U.S. Constitution.” Id. The 

decision to issue a stay relied on (1) the fact that, among their many claims, the TDP plaintiffs 

included a challenge to § 82.003 under the Twenty-Sixth Amendment, and (2) this Court’s 

conclusion that “the merits [of that issue] will be addressed” in the present appeal in TDP. Id.

When this case was filed, TDP was pending before another judge in this district. On May 

19, after expedited briefing and a hearing, that judge entered an order preliminarily enjoining § 

82.003. TDP v. Abbott, No. 20-CV-438, 2020 WL 2541971 (W.D. Tex. May 19, 2020). The 

order’s overwhelming focus was on § 82.003’s application in the present global pandemic. This 

was in line with the relief the TDP plaintiffs sought. See TDP, 2020 WL 2541971 at *11

(explaining Plaintiffs requested “an injunction order blocking state officials from denying a mailin ballot to any Texas voter who applies for a mail-in ballot because of the risk of transmission of 

COVID-19 . . . .”); see also Pl.’s Br. in Supp. of Prelim. Inj. at 3, TDP, 20-CV-438, ECF No. 10

at 3 (asserting plaintiffs forced to make “stark choice” of “risk[ing] infection from a dangerous, 

often deadly disease by voting in person, or . . . vote by mail utilizing the disability excuse . . .

under state law, or [be] disfranchised”); id. at 14 (seeking a “preliminary injunction pursuant to 

. . . as-applied claims . . . .”) (emphasis added). The TDP court’s preliminary injunction, too, was 

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tailored to the current health crisis, specifically ordering that: “during the pendency of pandemic 

circumstances” “[a]ny eligible Texas voter who seeks to vote by mail in order to avoid 

transmission of COVID-19 [to] apply for, receive, and cast an absentee ballot in upcoming 

elections . . . .” 2020 WL 2541971 at *6. That order was followed by a lengthy appendix in which 

the court set forth its findings that the plaintiffs were likely to succeed on the merits. Those findings

were largely centered on claims that Plaintiffs do not raise here—e.g., what the First and 

Fourteenth Amendment require in the context of the pandemic, the vagueness of the statute, and 

the Attorney General’s communications about Texas law in the same context. Id. at *7-32. But in 

that appendix, the district court also found that the TDP plaintiffs were likely to succeed on their 

Twenty-Sixth Amendment challenge. Id. *13-14. 

The State defendants in that case (Secretary of State Hughs, the Governor, and the Attorney 

General) sought an emergency stay from the Fifth Circuit. Over the course of only three days, the 

parties filed a flurry of briefs principally focused on claims other than the Twenty-Sixth 

Amendment.

1 On June 4, the motions panel issued an order staying the district court’s injunction

pending the outcome of the appeal. TDP v. Abbott, No. 20-50407, -- F. 3d. --, 2020 WL 2982937 

(5th Cir. June 4, 2020). This Court’s order staying the proceedings in this case followed one week 

later. 

ARGUMENT

Plaintiffs move this Court to reconsider its decision to stay this matter to avoid manifest 

injustice. The Fifth Circuit has repeatedly stated that “a motions panel decision is not binding 

 1 In their motion to stay, the State defendants noted that, in the proceedings below, the TDP

plaintiffs had “expressly deferred their facial challenges to section 82.003 . . . to ‘a final trial on 

the merits.’” Emergency Mot. for Stay Pending Appeal & Temporary Administrative Stay (“Mot. 

to Stay”), TDP v. Abbott, No. 20-50407, at 15 n.3. Defendants argued that, as a result, the district 

court acted improperly by “appear[ing] to have found the statute facially unconstitutional.” Id.

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precedent.” Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988) (citing Fischer v. 

United States, 759 F.2d 461, 463 (5th Cir. 1985), and E.E.O.C. v. Neches Butane Prods. Co., 704 

F.2d 144, 144 (5th Cir. 1983)). This is a good rule in general, but in this case, in particular, there 

are many reasons to anticipate that the motions panel’s decision in TDP is unlikely to resolve the 

Twenty-Sixth Amendment claim raised by Plaintiffs here (or even the claims raised in TDP). If 

Plaintiffs are not permitted to litigate their claim until the appeals in TDP are resolved, they are 

likely to suffer irreparable injury as a direct result of that delay.

A. Resolution of the TDP appeal is likely to come too late for Plaintiffs in this action.

When a court of appeals grants a stay on an emergency basis, it acts on an exceedingly 

compressed timeframe that is not conducive to deliberate, considered decision-making. See, e.g.,

United States v. Bear Marine Servs., 696 F.2d 1117, 1119 (5th Cir. 1983) (noting a merits panel 

may overrule a motions panel because the former “has the benefit of full briefs and frequently . . . 

oral argument”); E.E.O.C., 704 F.2d at 147 (noting a merits panel is entitled to determine that “the 

motions decision was improvident and should be reconsidered”). Thus, while two of the judges on 

the motions panel in TDP appeared to reach the preliminary opinion that the plaintiffs there are

not likely to succeed on their Twenty-Sixth Amendment claim (albeit for different reasons, as 

discussed further infra), the merits panel is free to come to a different conclusion. See, e.g., Cimino 

v. Raymark Indus., Inc., 151 F.3d 297, 311 n.26 (5th Cir. 1998) (noting “[i]t is settled that the 

motions panel order is not binding on us” and citing cases).

Unfortunately, whatever the merits panel does, it will almost certainly come too late for 

Plaintiffs in this action, who were preparing to file a motion for summary judgment seeking 

permanent relief in time for the November election. The TDP appeal is not set to be heard on any 

kind of expedited basis; the briefing schedule does not even contemplate the matter being fully 

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briefed until August 5, and argument has not yet been set. It is thus highly unlikely that any ruling 

will come before the November election. Lifting the stay and allowing Plaintiffs to proceed on the 

sole legal claim at issue in this case will ensure that, if Plaintiffs are denied their right to vote in 

November, it is not because of a delay in a decision in an entirely separate case.

If this Court lifts the stay and were to then go on to grant Plaintiffs’ motion for summary 

judgment, the Secretary, of course, would have the opportunity to appeal and to argue to this Court 

and the Court of Appeals that this Court’s decision should be stayed at that point. But the Court 

should not presuppose that Plaintiffs’ claim in this case will rise and fall with the TDP appeal, 

denying Plaintiffs here a chance to make their case in advance of the coming election. 

B. There are multiple indications the TDP appeal will not resolve Plaintiffs’ claim here.

While the Court’s conclusion that the merits of the TDP plaintiffs’ Twenty-Sixth 

Amendment claim “will be” addressed by a merits panel may seem unobjectionable at first blush, 

a close read of each of the three opinions that make up the 47-page order issued on the motion to 

stay strongly indicates that very well may not end up being the case.2

As this Court noted, the TDP plaintiffs’ Twenty-Sixth Amendment claim is only one issue 

“among others” that are under consideration in that appeal. ECF No. 14 at 1. Also at issue is the 

question of whether the district court judge should have abstained from reaching the merits of the 

claims in that case at the time that the preliminary injunction motion was decided. As noted above, 

the TDP plaintiffs expressly raised as-applied claims that sought relief during the pandemic, and 

at the time the district court issued its injunction the Texas Supreme Court was considering a

mandamus petition as to the plain meaning of § 82.002(a). That petition raised the question, 

 2 Because the opinion of the motions panel in the TDP case has been added to Westlaw’s database, 

this brief cites that opinion, rather than the slip opinion; it is the latter that was 47 pages long. 

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specifically, of whether, as a matter of state law, § 82.002(a) permits voting by mail solely based

on the risk of exposure to COVID-19. See In re State of Texas, No. 20-0401 (Tex. 2020). 

Judge Costa, who joined in the judgment of the motions panel’s decision, but not its 

reasoning, wrote separately to explain that he also would have issued a stay, but on the grounds

that the district court should have abstained from issuing the injunction, at least while the 

concurrent case was pending (and anticipated to be swiftly resolved) in the Texas Supreme Court. 

See TDP, 2020 WL 2982937, at *22-23 (Costa, J., concurring in judgment). In his view, the 

majority overreached and offered opinions on “‘unnecessary’ constitutional questions” (such as 

the likelihood of success on the Twenty-Sixth Amendment claim, about which Judge Costa 

expressed no opinion). See id. at *23. Judge Costa further opined that a decision on the merits

would also be “premature before the district court considers the claims in light of the nowdetermined issue of state law.” Id. 

When merits panels disagree with motions panels (or when courts reverse panel decisions 

en banc), they often do so by following a path already asserted in a concurring or dissenting 

opinion. See, e.g., Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366 (9th Cir. 2016) (en banc) 

(granting motion for injunction pending appeal “essentially for the reasons provided in the dissent” 

in prior panel decision (citing Feldman v. Ariz. Sec’y of State, 840 F.3d 1057, 1085-98 (9th Cir. 

2016)); Cincinnati Milacron, Ltd. v. M/V Am. Legend, 804 F.2d 837, 837 (4th Cir. 1986) (affirming 

judgment of district court “for reasons stated in the dissent to the superseded panel decision”).

Once a merits panel has the opportunity to carefully consider the issues that the TDP case presents,

it may agree with Judge Costa and choose, instead of reaching the merits, to remand for further 

consideration in light of the Texas Supreme Court’s ensuing opinion on the meaning of § 82.003.

Should the Fifth Circuit follow that path, Plaintiffs will have been denied their opportunity to make 

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their case, as well as any hope of obtaining a meaningful remedy in time to protect their voting 

rights in the coming November election, based on a dispute over the meaning of a state law that 

has no relevance to Plaintiffs’ sole claim here.

There are other paths the Fifth Circuit could follow that would similarly avoid reaching the 

Twenty-Sixth Amendment issue, leading to a “justice delayed is justice denied” situation for 

Plaintiffs here. The merits panel could, for example, determine that the injunction requested by the 

TDP—which requested relief in advance of the July primary runoff—should have been denied 

under the doctrine announced in Purcell v. Gonzalez, 549 U.S. 1 (2006), pursuant to which the 

Supreme Court has at times stayed decisions that courts determine could cause voter confusion 

when issued shortly before an election. Or the Fifth Circuit might agree with the State Defendants’ 

argument that the district court’s ruling on the Twenty-Sixth Amendment was premature and hold 

that claim was not properly before the court on the preliminary injunction at all. See Mot. to Stay, 

TDP v. Abbott, No. 20-50407, at 15 n.3 (asserting “Appellees expressly deferred their facial 

challenges to section 82.003 of the Texas Election Code to ‘a final trial on the merits,’ yet the 

district court appears to have found the statute facially unconstitutional”).

These are but a few of the possible courses that the appeal could take, but each demonstrate 

that it is far from certain that the TDP merits panel will reach the Twenty-Sixth Amendment issue.

Because it appears that this Court’s stay was based on the conclusion that it would do so, see ECF 

No. 14 at 1 (“Although the Fifth Circuit has not yet issued a ruling on the merits, the issue is before 

a three judge panel and the merits will be addressed.”) (emphasis added), that is reason alone to 

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reconsider and permit the Plaintiffs to brief their motion for summary judgment to attempt to obtain 

permanent relief on their single, narrow claim, prior to the November election.

C. The majority’s analysis of the Twenty-Sixth Amendment claim in the TDP stay order 

is deeply flawed.

In addition to the fact that the merits panel in the TDP appeal may not reach the issue at 

all, there are several other reasons to find that Judge Smith’s opinion is unlikely to be the last word 

on the Twenty-Sixth Amendment claim in the Fifth Circuit. Should this Court lift the stay and 

permit Plaintiffs to proceed to briefing their motion for summary judgment, they would expand on 

these points, but in brief summary they include the following. 

First, Judge Smith’s discussion of the Twenty-Sixth Amendment focuses on McDonald v. 

Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), a completely inapposite 

decision that had nothing to do with that Amendment. Indeed, it was decided (as Judge Smith 

acknowledges) two years before the Twenty-Sixth Amendment was ratified. See TDP, 2020 WL 

2982937, at *14. Judge Smith appears to attempt to justify this by asserting that, “[t]he TwentySixth Amendment is not a major player in federal litigation,” id. at 13, giving the impression that 

the motions panel is the first court to even consider the application of the Amendment in over 40 

years, but this is not at all the case and demotes the Amendment far below its fair billing. 

Since the Twenty-Sixth Amendment was ratified there has been a small, but largely 

consistent body of case law that has evaluated it on its own terms – not through the lens of the 

entirely ill-fitting McDonald – and found that it is definitely not “toothless.” Id. at 26 n.46. As the 

First Circuit noted in one of the very first cases to consider the Amendment, as a doctrinal matter

it must add some additional protection beyond that found in the Fourteenth Amendment. See

Walgren v. Bd. of Selectmen of Town of Amherst, 519 F. 2d 1364, 1367 (1st Cir. 1975). Yet, Judge 

Smith illogically opines, without addressing that case or virtually any others, that the Twenty-Sixth

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Amendment must be viewed entirely through the lens of a case decided on Fourteenth Amendment 

grounds two years before the Twenty-Sixth Amendment’s ratification.

There are several other good reasons to discount Judge Smith’s reading of the TwentySixth Amendment, one of which is pointed out by Judge Ho—the third judge on the motions 

panel—in his own concurrence. As Judge Ho recognizes, the text of the Twenty-Sixth Amendment 

“closely tracks” the text of the Fifteenth Amendment. See TDP, 2020 WL 2982937, at *20 (Ho, 

J., concurring). The Fifteenth Amendment prohibits the denial or abridgement of the right to vote 

“on account of race, color, or previous condition of servitude,” while the Twenty-Sixth 

Amendment does the exact same thing for voters “on account of age.” U.S. Const. amend. XV, § 

1; U.S. Const. amend. XXVI, § 1. Indeed, before he forges down the ill-conceived path of 

embracing McDonald as the key to the Twenty-Sixth Amendment claim, Judge Smith writes in 

the majority opinion that the plaintiffs “rightly” “assert . . . that section 82.003 facially 

discriminates on the basis of age.” TDP, 2020 WL 2982937, at *9. Judge Ho recognizes that, “it 

would presumably run afoul of the Constitution to allow only voters of a particular race to vote by 

mail.” Id. at 20. But nowhere in the stay opinion do any of the judges explain how, if that is the 

case (and Plaintiffs agree, it plainly is) it does not similarly “run afoul of the Constitution” to allow 

only voters of a particular age to vote by mail. Judge Ho notes that neither the TDP plaintiffs’ 

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Sixth Amendments. Id. This only serves to sharply underscore, again, how quickly the motions 

panel was deciding this issue, and the rushed nature of the briefing.3

It is also worth noting that none of the judges who contributed to the order on the motion 

to stay in the TDP appeal mentioned the most recent high-profile case to address the scope and 

effect of the Twenty-Sixth Amendment. In that case, which was decided less than two years ago, 

a federal district court struck down an opinion promulgated by the Florida Secretary of State that 

prohibited putting early voting sites on college or university campuses. See League of Women 

Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1210–11 (N.D. Fla. 2018). If anything, the 

law at issue here is more easily proved to “abridge” or “deny” the right to vote on account of age—

as even Judge Smith acknowledged, it is right there in the law’s text. See TDP, 2020 WL 2982937, 

at *9 (finding plaintiffs “assert (rightly) that section 82.003 facially discriminates on the basis of 

age”). In contrast, the on-campus early voting ban at issue in Detzner did not explicitly identify 

age as the reason for the prohibition. Nonetheless, the federal court concluded the ban was 

“unexplainable on grounds other than age because it bears so heavily on younger voters than all 

other voters,” and held it violated the Twenty-Sixth Amendment. 314 F. Supp. 3d at 1222. 

All of the above illustrates how the arguments in the instant case are likely to differ in 

meaningful ways from the cursory treatment that the Twenty-Sixth Amendment claim has received 

in the TDP appeal. To forestall the opportunity for Plaintiffs to move forward with their dispositive 

motion to explain to this Court why in fact the Twenty-Sixth Amendment requires the relief that 

Plaintiffs seek here based on a stay decision in which it appears only one judge was truly convinced 

 3 Judge Ho voiced some additional concerns about remedy that are easily addressed (and which 

Plaintiffs will address in their motion for summary judgment, should this Court lift the stay). 

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that the Twenty-Sixth Amendment question would not ultimately succeed, would work a manifest 

injustice on Plaintiffs in this litigation, indefinitely forestalling their right to litigate their claim. 

As previously noted, even if the merits panel were to come to a different conclusion than 

the motions panel in the TDP appeal, it would almost certainly be too late for Plaintiffs looking 

toward the November election. But the Court’s stay order suspends these proceedings not just until 

the Fifth Circuit issues a decision on the merits, but until all appeals of that merits decision are 

exhausted. ECF No. 14 at 1. As a result, it could quite conceivably be years before Plaintiffs may 

be permitted to proceed on their claim here. Under different circumstances, on a different record, 

and with a more thorough opinion from the motions panel, that may be warranted. But not here.

Not when the most fundamental of all rights is at stake, and in an election where discriminatory 

access to absentee voting could very well deny Plaintiffs, together with thousands of Texans who 

are rightfully concerned about their own health and the health of their loved ones, their right to 

vote entirely. See, e.g., Gloria Decl.; Macri Decl.; Ramos Decl.; Segaloff Decl.; Thompson Decl.

CONCLUSION

Plaintiffs respectfully request that the Court reconsider its order staying these proceedings 

pending the outcome of the appeal (and appeals yet to come) in the TDP case, and that the Court 

order the Secretary to respond to this motion on an expedited basis. Should the Court lift the stay, 

Plaintiffs could submit their motion for summary judgment as early as this Friday, June 19, which 

would make the motion ripe for the Court’s decision by no later than July 10. See Local R. CV-7.

This will give the Court sufficient time to consider the important question posed by this case and 

enter an order on Plaintiffs’ motion in advance of the coming election, ensuring that Plaintiffs have 

at least the opportunity to obtain meaningful relief in time for November. 

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Dated: June 15, 2020. Respectfullysubmitted,

PERKINS COIE LLP

/s/ John M. Geise

Skyler M. Howton 

TX# 24077907

500 North Akard St., Suite 3300

Dallas, TX 75201-3347

Telephone: (214) 965-7700

Facsimile: (214) 965-7799

SHowton@perkinscoie.com

Marc E. Elias*

John M. Geise*

Stephanie Command*

Zachary J. Newkirk*

700 Thirteenth St., N.W., Suite 600

Washington, D.C. 20005-3960

Telephone: (202) 654-6200

Facsimile: (202) 654-9959

melias@perkinscoie.com

jgeise@perkinscoie.com

scommand@perkinscoie.com

znewkirk@perkinscoie.com

Counsel forthe Plaintiffs

 *Admitted Pro Hac Vice

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CERTIFICATE OF CONFERENCE

Counsel for Plaintiffs conferred with counsel for Defendants on June 12, 2020 and they 

oppose Plaintiffs’ motion.

/s/ John M. Geise

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on June 15, 2020, I filed a copy of the foregoing Plaintiffs’ Opposed

Motion for Reconsideration of Order Staying Proceedings with the Clerk of the Court using the 

CM/ECF system, which will send notification of such filing to all counsel of record.

/s/ John M. Geise

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