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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

TEXAS DEMOCRATIC PARTY, GILBERTO 

HINOJOSA, Chair of the Texas Democratic 

Party, JOSEPH DANIEL CASCINO, 

SHANDA MARIE SANSING, and 

BRENDA LI GARCIA 

Plaintiffs, 

v. 

GREG ABBOTT, Governor of Texas; RUTH 

HUGHS, Texas Secretary of State, DANA 

DEBEAUVOIR, Travis County Clerk, and 

JACQUELYN F. CALLANEN, Bexar County 

Elections Administrator 

Defendants.

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

 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

REGARDING PRELIMINARY INJUNCTION PROCEEDINGS 

PROPOSED FINDINGS OF FACT 

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

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

through mucous membranes. Ex. 21 at p. 2. 

2. Coronavirus is spread through droplet transmission. These droplets are produced 

through coughing, sneezing, and talking. Ex. 21 at p. 3. Ex. 22 p. 14. Ex. 22 at p. 16-17. 

3. The virus can be spread when an infected person transmits these droplets to a 

surface like a polling machine screen. Ex. 21 at p. 3. Ex. 22 p. 72-73. 

4. It is highly likely that COVID-19 will remain a threat to the public both in July 

and through November. Ex. 6 at p. 3. Even if virus transmission and prevalence do decline 

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over the summer months, it remains likely that they will resurge in the fall and winter. Ex. 28 at 

p. 7. 

5. Reported illnesses have ranged from mild symptoms to severe illness and death. 

The most common symptoms include fever, dry cough, and shortness of breath. Ex. 21 at p. 2-

3. Other identified symptoms include muscle aches, headaches, chest pain, diarrhea, coughing up 

blood, sputum production, runny nose, nausea, vomiting, sore throat, confusion, loss of senses of 

taste and smell, and anorexia. Due to the respiratory impacts of the disease, individuals may need 

to be put on oxygen, and in severe cases, patients may need to be intubated and put on a 

ventilator. Ex. 28 at p. 3. 

6. Anyone can be infected with the novel coronavirus. Ex. 21 at p. 3-4. Ex. 22 at p. 

21. 

7. Certain groups, such as those over 60 years of age and those with certain 

underlying medical conditions, are at higher risk of serious illness and death should they be 

infected. Ex. 21 at p. 3 

8. People of every age are at risk of serious illness and possible death. Ex. 28 at p. 3. 

9. The Latino community is particularly vulnerable to infection, hospitalization, and 

death resulting from COVID-19, due to a combination of high prevalence of underlying medical 

conditions and socioeconomic conditions that make contracting the disease more likely. Ex. 28 at 

p. 4. 

10. Any place where people gather and cannot maintain physical distancing, such as a 

polling place, represents a heightened danger for transmission of COVID-19 disease. Ex. 21 at 

p. 3. Ex. 22 p. 14. 

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11. Crowding and exposure to a range of surfaces at the polls make polling places 

likely transmission sites for the virus. Ex 21. at p. 2-3. Ex. 22 p. 14. 

12. Polling places will likely remain transmission sites for the virus, even if election 

officials use all reasonable preventive measures. Ex. 22 at p. 72. Ex. 22 at p. 64-70. 

13. Requiring voters to remain in close proximity to other voters and election workers 

for lengthy periods of time, particularly at polling locations with long lines and extended wait 

times would place them at risk of contracting or spreading COVID-19. Ex. 28 at p. 8. 

14. This would be particularly true for those who are at a greater risk of complications 

and death from COVID-19, including the elderly, immunocompromised, and people with 

underlying health conditions, including many members of the Latino community. E. 28 at p. 8. 

15. However, data to date in Texas demonstrate higher than expected infection rates 

in younger persons. Ex. 45; Ex. 22 at p. 42-44. 

16. Some infected persons do not appear to have any symptoms although they may 

still be able to infect others. Ex. 21 at p. 3; Ex. 23 at p. 5 . 

17. Meanwhile, other people with no pre-existing conditions are dying of stroke 

without ever displaying the typical COVID-19 symptoms. Ex. 28. 

18. COVID-19 has become one of the leading causes of death in the United States. 

Ex. 48 at p. 1-2. 

19. As of May 13, 2020, Texas has 41,048 reported cases of COVID-19.1 Ex. 44 at 

p.1. 

1TEXAS DEPARTMENT OF STATE HEALTH SERVICES, 

https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc

8b83 (last visited April 25, 2020). 

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20. As of April 25, 2020, the highest number of reported cases of COVID-19 in Texas 

are among 50 to 59-year-olds and 40 to 49-year-olds, with 2,568 reported cases and 2,620 

reported cases, respectively. Ex. 45 at p. 1. 

21. 20 to 29-year-olds represent 2,183 cases, while those aged 65 to 74 make up 

1,292 reported cases in Texas. As of May 13, the State has seen 1,133 deaths from the virus. 

Ex. 44 at p. 1. Ex. 45 at p. 1. 

22. Herd Immunity occurs when a high percentage of people in a community become 

immune to an infectious disease. This can happen through natural infection or through 

vaccination. In most cases, 80- 95% of the population needs to be immune for herd immunity to 

take place. Ex. 21 at p. 5. 

23. “Herd Immunity” will not reduce the risk of COVID-19 during the 2020 

elections. Ex. 21 at p. 6-7 . 

24. An FDA-approved vaccine will be available for at least 12-18 months. Therefore, 

a vaccine will not reduce the risk of COVID-19 during the 2020 elections. Ex. 21 at p. 4-5 

II. Voting by Mail Is Safe with No Risk of COVID-19 Transmission 

25. There is no evidence the virus can be spread by paper, including mail. Ex. 21 at 

p. 7. 

26. Voting by mail would prevent virus transmission between voters standing in line, 

signing in, and casting votes, as well as between voters and election workers. Ex. 21 at p. 7. . 

Ex. 22 at p. 72-73. Ex. 22 at p. 183. Ex. 22 at p. 201. 

27. Voting by mail would eliminate viral transmission through contamination of 

environmental surfaces like voting machines. Ex. 21 at p. 7. Ex. 22 p. 72. Ex. 22 at p. 252-253. 

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28. Due to the pandemic, voting by mail is much safer for the public than voting in 

person. Ex. 6 at p. 3. Ex. 22 at p. 182. Ex. 22 at p. 192-193. Ex. 22 at p. 234. Ex. 22 at p. 237.

Background of Voting by Mail in Texas 

29. Texas law allows voting by mail for registered voters who meet one of the 

qualifications stated in the Election Code. See Tex. Elec. Code Ch. 82. 

30. A voter is qualified to vote by mail if he (1) anticipates being absent from his 

county of residence on election day; (2) has an illness or other physical condition that disables 

him from appearing at the polling place; (3) is 65 or older; or (4) is confined in jail. Tex. Elec. 

Code §§ 82.001-4. Ex. 1 at p. 2. Ex. 22 at p. 214. Ex. 22 at p. 243-244. Ex. 22 at p. 250. 

31. Voters apply to vote by mail with a mail ballot application which they send to the 

early voting clerk. Tex. Elec. Code §§ 84.001. 

32. The early voting clerk is responsible for conducting early voting and must 

“review each application for a ballot to be voted by mail.” Tex. Elec. Code § 86.001(a). 

33. An early voting ballot application must include the applicant's name and the 

address at which the applicant is registered to vote and an indication of the grounds for eligibility 

for voting by mail. Tex. Elec. Code § 84.002. 

34. The applicant for a mail ballot must certify that “the information given in this 

application is true, and I understand that giving false information in this application is a crime.” 

Tex. Elec. Code § 84.011. 

35. It is a crime to “knowingly provide false information on an application for ballot 

by mail.” Tex. Elec. Code § 84.0041. 

36. If the clerk determines the applicant is entitled to vote by mail, the clerk shall 

provide the voter a ballot by mail. Tex. Elec. Code § 86.001. 

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37. If the voter is not entitled to vote by mail, the clerk shall reject the application and 

give notice to the applicant. Id. 

38. A rejected applicant is not entitled to vote by mail. Id. 

39. July 2 is the deadline for an early voting clerk to receive an application to vote by 

mail for the upcoming July 14, 2020 Democratic Party Run-Off. See Tex. Elec. Code § 

84.007(c). Ex. 13 at p. 11. 

40. Mail ballots are expected to start being sent to voters in response to their requests 

on May 30, 2020. Ex. 13 at p. 9. 

41. Thousands of vote-by-mail applications are being sent to early voting clerks 

across Texas. Ex. 46 at p. 4-5. 

Election Officials Need Clarity to Prepare for Imminent Elections 

42. Governor Abbott has set both the date of the special election for Senate District 

14 in Bastrop and Travis Counties and the Democratic Primary Run-Off election in all 254 

Counties on July 14, 2020. Ex. 7 at p. 1. During both the primary and the November General 

Election state election law requires all ballot information be complete by 74 days before the 

election. Ex. 7 at p. 1. During that time, clerks must do all of the following: 

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

jurisdictions appearing on the ballot; 

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

● program ballot scanners, controllers, and related technology; 

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

use of signature verification committees and ballot boards; 

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

counting; 

● train all workers; 

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

with locations; 

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

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

from tampering before, during and after the polling locations open and close. Ex. 

7 at p. 1-2. 

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

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

to obtain mail-ballots. Ex. 24 at p. 7. The Secretary did not provide such definitive guidance. 

44. On April 6, 2020, the Secretary of State issued Election Advisory 2020-14, which 

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

the only guidance from the Secretary of State to election officials pending the resolution of 

Defendants’ appeal of that litigation. It does not provide guidance to election officials if their 

interpretation is correct or if counties should have a uniform interpretation of the statute. Ex. 1 at 

p. 2-4. 

45. The State of Texas’ Fourteenth Court of Appeals has ordered that the appeal in 

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

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

at p. 2. 

46. On May 15, 2020, the State of Texas filed a Petition for Writ of Mandamus in the 

Texas Supreme Court against only some of the counties in Texas and the Petition seeks to 

collaterally attack the state district court injunction order while not including Plaintiffs as real 

parties in interest. Ex 42.

Sequence of Events Since the Outbreak in Texas 

47. On March 13, 2020, Defendant Abbott declared that COVID-19 poses an 

imminent threat of disaster. Ex. 2 at p. 2 .

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48. On March 19, 2020, Dr. John W. Hellerstedt, Commissioner of the Department of 

State Health Services, declared a state of public health disaster. The disaster declaration 

provided that people not gather in groups larger than 10 members and limit social contact with 

others by social distancing or staying six feet apart. Ex. 4 at p. 1.

49. On March 19, 2020, Defendant Abbott closed schools temporarily. He also 

closed bars and restaurants, food courts, gyms and massage parlors. Ex. 3 at p. 3.

50. On April 27, 2020, Defendant Abbott issued a new order that purports to open the 

state’s business affairs, in “phases.” Ex. 43 at p. 1. He has indicated that case testing will be 

monitored and that if and when cases begin to increase, the opening will be slowed and/or 

reversed. 

51. Dr. Deborah Leah Birx, the Coronavirus Response Coordinator for the White 

House Coronavirus Task Force, has stated that “social distancing will be with us through the 

summer to really ensure that we protect one another as we move through these phases.” Ex. 47 

at p. 12. 

52. An advisory issued by the Secretary of State’s Office instructed counties to begin 

preparing for larger than normal volumes of vote by mail while also giving guidance to local 

officials to seek court orders, as appropriate, to adjust election procedures. Ex. 24 at p. 9 .

53. In order to seek clarity of the requirements of state law, some of these Plaintiffs 

sought declaratory and injunctive relief in Texas district court in Travis County. Democratic 

Party, et al. v. DeBeauvoir, et al., No. D-1-GN-20-001610 (201st Dist. Ct., Travis Cty., Tex. 

filed March 20, 2020). 

54. Texas intervened and asserted a Plea to the Jurisdiction based on standing, 

ripeness, and sovereign immunity. Ex. 33 at p. 2. 

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55. Texas argued in its Plea to the Jurisdiction that vote by mail administration is a 

county-level decision. Ex. 33 at p. 3. 

56. On April 15, the state court heard the plaintiffs’ temporary injunction motion and 

Texas’ plea to the jurisdiction. The state court verbally announced the denial of the plea to the 

jurisdiction and the granting of the temporary injunction. 

57. In response to the oral order, Defendant Paxton made public a letter he had sent to 

the Chair of the House Committee on Elections of the Texas House of Representatives. Ex. 55 at 

p. 1-5. 

58. In the letter, Defendant Paxton gave a non-official, advisory opinion regarding 

whether the risk of transmission of COVID-19 would entitle Texas voters to cast a mail-in ballot. 

He stated: “We conclude that, based on the plain language of the relevant statutory text, fear of 

contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not 

constitute a disability under the Election Code for purposes of receiving a ballot by mail.” Ex. 

55 at p. 3. 

59. In a statement accompanying the publication of the letter, General Paxton said: 

“I am disappointed that the district court ignored the plain text of the Texas Election Code to 

allow perfectly healthy voters to take advantage of special protections made available to Texans 

with actual illness or disabilities. This unlawful expansion of mail-in voting will only serve to 

undermine the security and integrity of our elections and to facilitate fraud. Mail ballots based on 

disability are specifically reserved for those who are legitimately ill and cannot vote in-person 

without needing assistance or jeopardizing their health. Fear of contracting COVID-19 does not 

amount to a sickness or physical condition as required by state law.” Ex. 55 at p. 1. 

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60. This statement and the actions of the State contributed to the uncertainty that 

voters and early voting clerks face in administering upcoming elections. 

61. The letter also threatened political speech by Texas Democratic Party (“TDP” or 

“the Party”) and other political actors in the state. Ex. 55 at p. 5. 

62. The letter stated: “To the extent third parties advise voters to apply for a mail-in 

ballot based solely on fear of contracting COVID-19, such activity could subject those third 

parties to criminal sanctions imposed by Election Code section 84.0041.” Ex. 55 at p. 5. 

63. The public statements and actions of the Defendant Paxton create a reasonable 

fear by voters that they will be prosecuted. Ex. 8 at p. 7.

64. On May 1, 2020 after counties were following judge Sulak’s order, Defendant 

Paxton issued another Guidance Letter which again purported to threaten Texans with criminal 

prosecution for following Judge Sulak’s order. Ex. 34.

65. Given the public statements and actions by Defendant Paxton, a voter would 

reasonably fear that he or she would face criminal sanction if he or she checks the disability box 

on a mail ballot application because of the need to avoid the potential contraction of the virus. 

Ex. 8 at p. 7

66. Given the public statements and action by Defendant Paxton, third party political 

actors such as TDP have a reasonable fear of criminal sanction for assisting voters to apply for 

mail in ballots in order to avoid exposure to COVID-19. Ex. 55 at p. 5. 

Texas Is a Large, Diverse State Whose Voters Need Protection 

67. Texas is a large state, with a diverse pool of voters. As of July 1, 2019, there are 

28,995,881 Texans. Ex. 29.. People over the age of 65 are 12.6% of the population, or about 

3,653,481 people. Id. Children below the age of 18 are 25.8% of the population, or 7,480,937 

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people. Id. Texans between age of 18 and 65 are 61.6% of the population, or 17,861,463 

people. Id. On January 23, 2020, the Secretary of State announced that Texas had set a new 

state record of registered voters with 16,106,984 registered voters. Id.

68. Texas is a racially diverse state. U.S. Census data show that Non-Hispanic 

Whites make up 41.5% of the population Id. 62.9% of Texans who are 65 years of age or older 

are Anglos. The average age of all Texas Anglos is 41.5 years old. Anglos are only 41.8% of 

Texans 18 to 65 years of age. 

69. Among the voting-eligible population, only an estimated 11 percent of Latino 

voters in Texas are 65 years of age or older.2 Conversely, an estimated 21.7 percent of white 

voters are 65 years of age or older—nearly twice as many as Latinos.3 

70. Texas Latinos are uniquely vulnerable to infection, hospitalization, and death as a 

result of COVID-19 due to higher rates of underlying medical risk factors and other 

socioeconomic conditions that contribute to poorer health outcomes, such as lower rates of health 

insurance. Ex. 28 

71. Elections in Texas are racially polarized in all or nearly all levels of state 

elections. Ex. 31. The Anglo majority statewide votes as a bloc against the minority preferred 

candidates. Id. Minority voters vote as a bloc for their preferred candidates. Id. Anglos vote in 

sufficiently large numbers and in concert to defeat the minority-preferred candidates most of the 

time. Id. Texas campaigns have been typified by racial appeals and minority-preferred 

candidates are rarely, if ever, successful. Id.

2 https://www.pewresearch.org/hispanic/fact-sheet/latinos-in-the-2016-election-texas/

3

Id. 

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72. Socio-economic disparities exist in Texas that undermine the ability of the 

minority community to influence state officials, state elections and state policy. Id. Elected 

officials are not responsive to the needs of the minority community. Id. Texas has long history 

of disfranchisement and racial discrimination. Id.

Plaintiffs 

a. Texas Democratic Party 

73. The TDP is a political party formed under the Texas Election Code. 

74. The TDP is the canvassing authority for many of the imminent run-off elections 

to be held on July 14, 2020. 

75. The election of July 14 is, in part, to determine runoff elections and therefore 

award the Democratic Party Nominations to those who prevail. Ex. 24 at p. 13 .

76. TDP is the political home to millions of Texas voters and thousands of Texas’ 

elected officials. 

77. The TDP expends resources to try to help its eligible voters vote by mail. Ex 7. 

24 and 29.

78. TDP is injured by the uncertainty of the laws associated with voting by mail 

because of the expenditure of financial resources used to help its members vote by mail, and the 

potential disfranchisement of its members. Ex 7. 24 and 29.

79. TDP is harmed by the state forcing it to award its nominations in an undemocratic process. Ex 7. 24 and 29.

b. Gilberto Hinojosa 

80. Gilberto Hinojosa is the elected Chair of the TDP. He is one of the 

administrators of the upcoming run-off elections for the Texas Democratic Party. Ex. 24 at p. 4 

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He is the head of the canvassing authority for the July run-off elections and is the leader of the 

Party by and through his statutory and rule-based powers. 

81. Chair Hinojosa is also a registered voter in Texas. 

82. Chair Hinojosa is injured by the Defendants, because of the uncertainty of Texas 

law s regarding qualifications to vote by mail. 

c. Joseph Daniel Cascino 

83. Joseph Daniel Cascino is a Travis County voter who voted in Democratic primary 

election on March 3, 2020. Ex. 10 at p. 1 .

84. He intends to vote by mail in the upcoming run-off and general elections. Ex. 10 

at p. 1-2 .

85. He is not 65 years of age or older. Ex. 10 at p. 1 .

86. He intends to be in Travis County during the early vote period and Election Day. 

Ex. 10 at p. 1 .

87. He has not been deemed physically disabled by any authority. Ex. 10 at p. 1 .

88. He wishes to vote by mail because of the risk of transmission by COVID-19 at 

polling places. Ex. 10 at p. 2 .

d. Shanda Marie Sansing 

89. Shanda Marie Sansing is a Travis County voter who voted in Democratic primary 

election on March 3, 2020. Ex. 9 at p. 1 .

90. She intends to vote by mail in the upcoming run-off and general elections. Ex. 9 

at p. 1-2 .

91. She is not 65 years of age or older. Ex. 9 at p. 1 .

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92. She intends to be in Travis County during the early vote period and Election Day. 

Ex. 9 at p. 1 .

93. She has not been deemed physically disabled by any authority. Ex. 9 at p. 1 .

94. She wishes to vote by mail because of the risk of transmission by COVID-19 at 

polling places. Ex. 9 at p. 2 .

e. Brenda Li Garcia 

95. Brenda Li Garcia is a Bexar County voter who has voted in Democratic primary, 

run-off, and general elections in the past. Ex. 30

96. She intends to vote by mail in the upcoming run-off and general elections. Ex. 

30.

97. She is not 65 years of age or older. Ex. 30.

98. She intends to be in Bexar County during the early vote period and Election Day. 

Ex. 30.

99. She has not been deemed physically disabled by any authority. Ex. 30.

100. She wishes to vote by mail because of the risk of transmission by COVID-19 at 

polling places. Ex. 30.

101. Defendants 

a. The Honorable Gregg Abbott 

119. The Honorable Gregg Abbott is the Governor of Texas and a defendant in this 

case.

120. He is the chief executive officer in this State. Tex. Const. Art. IV § 1.

b. The Honorable Ruth Hughs 

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121. The Honorable Ruth Hughs is the Secretary of State of Texas and its chief 

election officer. Tex. Elec. Code § 31.001.

122. Secretary Hughes has injured the plaintiffs by creating a lack of clarity and 

probable lack of uniformity in application of the election laws relating to mail ballot eligibility 

throughout the State. 

c. The Honorable Ken Paxton 

123. The Honorable Ken Paxton is the Attorney General of Texas and its chief legal 

officer. Tex. Const. Art. IV § 22. 

124. The Attorney General of Texas may investigate and assist local jurisdictions in 

prosecuting election-related crimes. Tex. Elec. Code §§ 273.001 (d); 273.002. 

125. Recently, General Paxton has issued a letter threatening “third parties [who] 

advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such 

activity could subject those third parties to criminal sanctions imposed by Election Code.” Ex. 

55 at p. 5. 

126. General Paxton has created a lack of clarity and probable lack of uniformity in 

application of the election laws relating to mail ballot eligibility throughout the State. 

127. General Paxton’s letter also threatens U.S. citizens for exercising their Right to 

Vote. Ex. 55 at p. 5. See also, Ex. 34. 

d. The Honorable Dana De Beauvoir 

153. The Honorable Dana DeBeauvoir is the Travis County Clerk. Ex. 15 at p. 1. 

154. She is the early voting clerk for the upcoming run-off and general elections. 

155. Clerk DeBeauvoir has been ordered by a Texas district court to issue voters like 

the plaintiffs a mail ballot. Ex. 49 at p. 5-6. 

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e. Ms. Jacquelyn Callanen 

156. Ms. Jacquelyn Callanen is the elections administrator for Bexar County. 

157. She is the administrator of the run-off and general elections in Bexar County. 

158. She is the early voting clerk that will grant or deny mail ballots to applicants in 

the coming elections. 

 

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PROPOSED CONCLUSIONS OF LAW 

I. All Plaintiffs Have Standing 

1. This Court concludes that Plaintiffs have standing in this case because they all 

face an imminent risk of harm, the harm they face is fairly traceable to Defendants’ conduct, and 

that harm is redressable by this Court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 

(1992). 

2. Plaintiff Texas Democratic Party faces an imminent risk of harm as a result of the 

Defendants’ interpretation of the Texas Elec Code. § 82.001-4. and Defendants’ refusal to follow 

the Texas state court order permitting voters to access absentee ballots due to fear of COVID-19. 

The Texas Democratic Party will be conducting their own run-off elections to determine who the 

organization chooses as their standard bearer. Ex. 24 at p. 14: 10-24. The Texas Democratic 

Party has an interest in ensuring that their election is conducted in a manner that would not 

disenfranchise voters nor put voters at risk of death and is harmed because under the Attorney 

General’s interpretation of the statute and inability to follow the Texas state court law, the 

party’s ability to run their primary is diminished. Ex. 24 at p. 15. An organization may establish 

injury-in-fact if the “defendant’s conduct significantly and 'perceptibly impaired' the 

organization's ability to provide its 'activities—with the consequent drain on the organization's 

resources.’” NAACP v. City of Kyle, 626 F.3d. 233, 238 (5th Cir. 2010) (quoting Havens Realty 

Corp. v. Coleman, 455 U.S. 363, 379 (1982). The Texas Democratic Party’s purpose is to 

promote Democratic candidates and facilitate elections for the party, promote voter participation 

among its members and the public more broadly (Ex. 29), and the interest the Party seeks to 

protect through this litigation are therefore germane to its purpose. This harm is plainly traceable 

to the Defendants who are refusing to follow the state court order and threatening voters who 

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request or use an absentee ballot due to COVID-19 with prosecution. Accordingly, the Texas 

Democratic Party has standing to sue Defendants. See Lujan, 504 U.S. at 560-61. 

3. The Texas Democratic Party also has standing to challenge the actions at issue 

both on behalf of its members and its own behalf. An organization may establish injury-in-fact if 

the “defendant’s conduct significantly and 'perceptibly impaired' the organization's ability to 

provide its 'activities—with the consequent drain on the organization's resources.’” NAACP v. 

City of Kyle, 626 F.3d. 233, 238 (5th Cir. 2010) (quoting Havens Realty Corp. v. Coleman, 455 

U.S. 363, 379 (1982). The Texas Democratic Party’s purpose is to promote Democratic 

candidates and facilitate elections for the party, promote voter participation among its members 

and the public more broadly (Ex. 29), and the interest the Party seeks to protect through this 

litigation are therefore germane to its purpose. 

4. Plaintiff Gilberto Hinojosa faces an imminent risk of harm as a result of the 

Defendants interpretation of the Texas Elec Code. § 82.001-4, and Defendant’s refusal to follow 

the Texas state court order permitting voters to use absentee ballots due to the COVID-19 

pandemic. Hinojosa is a registered Democrat, is planning to vote in the July 14th, 2020 runoff 

election, and is the elected Chair of the Texas Democratic Party. Hinojosa is one of the 

administrators of the Texas Democratic Party run-off elections. Ex. 24 at p. 4. He is the head of 

the canvassing authority and is the leader of the Party by and through his statutory and rule-based 

powers. Texas Election Code § 163.003-004. Hinojosa is injured by the Defendants because the 

uncertainty of Texas law’s regarding qualifications to vote by mail and the Attorney General’s 

threat of prosecution of those who access vote by mail ballots, even those permitted through the 

Texas state court order. Ex. 49 at p. 4-6. Ex. 55 at p. 1-5. Ex. 34 at p. 1-3. The evidence before 

this Court is that an injunction issued by the Court requiring the Defendants to permit the use 

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absentee ballots under the Texas law due to COVID-19 and enjoin the Attorney General from 

threatening prosecution of voters who use absentee ballots would redress the harm. Accordingly, 

Gilberto Hinojosa has standing to sue Defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 

55, 560-61 (1992). 

5. Plaintiff Joseph Daniel Cascino faces an imminent risk of harm as a result of the 

Defendants interpretation of the Texas Elec Code. § 82.001-4. and Defendant’s refusal to follow 

the Texas state court order permitting voters to use absentee ballots due to the COVID-19 

pandemic. Cascino is a registered Democrat and Travis County voter who intends to vote by mail 

in the July 2020 run-off election and general election due to the risk of transmission by COVID19. Ex. 10 at p. 1-2 . Cascino is not 65 years of age, intends to be in Travis County during the 

early voting period and Election Day, and has not been deemed physically disabled by any 

authority. Ex. 10 at p. 1 . Cascino is injured by Defendants because Defendant’s interpretation 

of the Texas Election Code and refusal to follow the state court order would disenfranchise him. 

He is further injured by the threat of unjust prosecution by Attorney General Paxton. The 

evidence before this Court is that an injunction issued by the Court requiring the Defendants to 

permit the use absentee ballots under the Texas law due to COVID-19 and enjoin the Attorney 

General from threatening prosecution of voters who use absentee ballots would redress the harm. 

Accordingly, Joseph Daniel Cacino has standing to sue Defendants. See Lujan v. Defenders of 

Wildlife, 504 U.S. 55, 560-61 (1992). 

6. Plaintiff Shanda Marie Sansing faces an imminent risk of harm as a result of the 

Defendants interpretation of the Texas Elec Code. § 82.001-4. and Defendant’s refusal to follow 

the Texas state court order permitting voters to use absentee ballots due to the COVID-19 

pandemic. Sansing is a registered voter in Travis County and has voted in Democratic primary, 

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run-off elections, and general elections in the past. Ex. 9 at p. 1. She intends to vote by mail in 

the upcoming run-off elections and general elections. Ex. 9 at p. 1-2. She is not 65 years of age, 

intends to be in Travis County during the early vote period and Election Day, and has not been 

deemed disabled by any authority. Ex. 9 at p. 1. Sansing wishes to vote by mail due to the risk 

of transmission of COVID-19 at in-person polling places. Ex. 9 at p. 2. She is injured by 

Defendants because Defendant’s interpretation of the Texas Election Code and refusal to follow 

the state court order would disenfranchise her. She is further injured by the threat of unjust 

prosecution by Attorney General Paxton. The evidence before this Court is that an injunction 

issued by the Court requiring the Defendants to permit the use absentee ballots under the Texas 

law due to COVID-19 and enjoin the Attorney General from threatening prosecution of voters 

who use absentee ballots would redress the harm. Accordingly, Shanda Marie Sansing has 

standing to sue Defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 55, 560-61 (1992). 

7. Plaintiff Brenda Li Garcia faces an imminent risk of harm as a result of the 

Defendants interpretation of the Texas Elec Code. § 82.001-4. and Defendant’s refusal to follow 

the Texas state court order permitting voters to use absentee ballots due to the COVID-19 

pandemic. Ex. 30. Garcia is a Bexar County voter. Id. She has voted in the Democratic 

primary, run-off elections, and general elections in the past and intends to vote by mail in the 

upcoming run-off and general elections. Id. She is not 65 years of age or older. Id. She intends 

to be in Bexar County during the early voting period and Election Day. Id. She wishes to vote 

by mail because of the risk of transmission and contraction of COVID-19 at in-person polling 

places. Id. She is injured by Defendants because Defendant’s interpretation of the Texas 

Election Code and refusal to follow the state court order would disenfranchise her. She is further 

injured by the threat of unjust prosecution by Attorney General Paxton. The evidence before this 

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Court demonstrates that counties view the orders of the Attorney General as mandatory Id. , and 

thus, an injunction issued by the Court requiring the Defendants to permit the use absentee 

ballots under the Texas law due to COVID-19 and enjoin the Attorney General from threatening 

prosecution of voters who use absentee ballots would redress the harm. Accordingly, Brenda Li 

Garcia has standing to sue Defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 55, 560-61 

(1992). 

8. The claims asserted in this case do not require individualized proof as to every 

affected voter and cases that involve injunctive relief such as that sought here do not normally 

require individual participation. See Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 

333, 343 (1977). 

9. The Texas Democratic Party has organizational standing to sue on its own behalf 

because Defendants’ illegal acts not permitting voters to access mail ballots under the Texas state 

court order and under Texas Election Code and Attorney General Paxton’s threats to prosecute 

voters, impair the Texas Democratic Party’s ability to engage in its projects by forcing the 

organization to divert resources to counteract those illegal actions, such as by educating voters 

on their ability to access absentee ballots. Ex. 7, 24 and 29. Resource diversion is a concrete 

injury traceable to the Defendants’ conduct and redress can be provided by granting this 

injunction. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). And the Fifth Circuit 

has affirmed that “an organization may establish injury in fact by showing that it had diverted 

significant resources to counteract the defendant’s conduct; hence, the defendant’s conduct 

significantly and ‘perceptibly impaired’ the organization’s ability to provide its ‘activities—with the 

consequent drain on the organization’s resources.’” NAACP v. City of Kyle, Tex., 626 F.3d 233, 238 

(5th Cir. 2010) (quoting Havens Realty Corp., 455 U.S. at 379). 

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10. Further, all individual Plaintiffs have made clear in their declarations that they not 

only do intend to vote in the upcoming elections, but they intend to do so through absentee 

ballots and will be disenfranchised due to fear of COVID-19 if unable to access mail ballots or 

prosecuted for accessing these ballots. Ex. 9 at p. 1-2. Ex. 10 at p. 1-2 and Ex. 30. The 

evidence before this court satisfies any requirement that “voters who allege facts showing 

disadvantage to themselves as individuals have standing to sue.” See Gill v. Whitford, 138 S. Ct. 

1916,1929 (2018). 

11. Plaintiffs also satisfy the causation requirement of standing. K.P. v. LeBlanc, 627 

F.3d 115, 123 (5th Cir. 2010) (citations omitted) (“Because State Defendants significantly 

contributed to the Plaintiffs’ alleged injuries, Plaintiffs have satisfied the requirement of 

traceability.”). Defendants’ actions would significantly contribute, if not wholly cause, 

Plaintiffs’ alleged injuries, i.e., their inability to exercise their constitutional right to vote. 

II. A Preliminary Injunction Should Issue against Defendants while the Case Proceeds. 

12. This Court concludes that Plaintiffs should be granted a preliminary injunction 

pursuant to its as-applied claims relating to: (1) the 26th Amendment of the U.S. Constitution; 

(2) vagueness in violation of the “Due Process” clause of the 5th and 14th Amendments; (3) 

voter intimidation in violation of 52 U.S.C. § 10307(b); and (4) the First Amendment of the U.S. 

Constitution. 

13. Plaintiffs should be granted a preliminary injunction, because they have satisfied 

the four requirements for such an injunction to issue: (1) a substantial likelihood of success on 

the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the 

threatened injury if the injunction is denied outweighs any harm that will result if the injunction 

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is granted, and (4) that the grant of an injunction will not disserve the public interest. Byrum v. 

Landreth, 566 F.3d 442, 445 (5th Cir. 2009). 

a. Plaintiffs Are Likely to Succeed on the Merits of their Claims 

i. Plaintiffs Are Likely to Succeed on their 26th Amendment Claim 

14. The Twenty-Sixth Amendment states, “[t]he right of citizens of the United State, 

who are eighteen years of age or older, to vote shall not be denied or abridged by the United 

States or by any State on the account of age” (U.S. Const. amend. XXIV, § 1), and forbids the 

abridgement or denial of the right to vote of young voters by singling them out for disparate 

treatment. See Ownby v. Dies, 337 F. Supp. 38, 39 (E.D. Tex. 1971). 

15. Courts presented with claims arising under the Twenty-Sixth Amendment must 

apply strict scrutiny. See U.S. v. State of Tex., 445 F. Supp. 1245,126 (S.D. Tex. 1978), aff’d sub 

nom. Symm v. United States, 439 U.S. 1105 (1979) (determining that a Texas registrar had 

violated the Twenty-Six Amendment by imposing burdens on students wishing to register to vote 

and providing that “before that right [to vote] can be restricted, the purpose of the restriction and 

the assertedly overriding interests served by it must meet close constitutional scrutiny”); see also 

Lynch v. Donnelly, 465 U.S. 668, 687 n. 13 (1984) (holding that laws, statutes, or practices that 

are “patently discriminatory on its face” will receive strict scrutiny.); League of Women Voters of 

Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1221 (N.D. Fla. 2018) (finding that the Twenty-Sixth 

Amendment provides an “added protection to that already offered by the Fourteenth 

Amendment”). Under strict scrutiny, the burden is on the State to justify that its policy, statute, 

or decision is narrowly tailored to serve a compelling state interest. See League of United Latin 

Am. Citizens v. Perry, 548 U.S. 399, 475 (2006). 

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16. Texas statute creates two classes of voters, those under the age of 65 who cannot 

access a mail ballot under this law and those over the age of 65 who can access mail ballots. 

Tex. Elec. Code § 82.003 states that “a qualified voter is eligible for early voting by mail if the 

voter is 65 years of age or older on election day.” Those aged 65 and older are permitted to 

access mail ballots under this law on the account of their age alone, and those younger than 65 

face a burden of not being able to access mail ballots on account of their age alone. 

17. Plaintiffs complain that younger voters bear a disproportionate burden because the 

age restrictions of Tex. Elec. Code § 82.003, that Tex. Elec. Code § 82.003 is a government 

classification based on age and discriminates against voters under the age of 65 based on age, 

and that Tex. Elec. Code § 82.003 is prima facie discriminatory under all circumstances.

18. However, in the Preliminary Injunction proceeding, Plaintiffs only seek relief, as 

applied during the pandemic.

19. The Court concludes, that during the COVID-19 pandemic, younger voters bear a 

disproportionate burden because the age restrictions of Tex. Elec. Code § 82.003, that Tex. Elec. 

Code § 82.003 is a government classification based on age and discriminates against voters 

under the age of 65 based on age, and that Tex. Elec. Code § 82.003 violates the 26th

Amendment, as applied, during the COVID-19 pandemic.

20. COVID-19 has become one of the leading causes of death in the United States. 

Data to date in Texas demonstrates higher than expected infection rates in younger persons. 

General Paxton has threatened to prosecute voters under the age of 65 who use mail ballots under 

the disability exemption as provided by the state court ruling. Ex. 8 at p. 7 . Thus, younger 

voters who are just as at risk to contract COVID-19 are forced to choose between risking their 

health by voting in-person or facing criminal prosecution by Defendant Paxton. 

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21. As a result of Defendants’ actions, the right of people below the age of 65 to vote 

is uniquely threatened and burdened solely based on their age. Thus, this Court concludes that 

Tex. Elec. Code § 82.003 classification of voters by age is discriminatory, as applied, because it 

erects an obstacle to the franchise for younger voters.

22. Defendants have attempted to meet their burden of showing that their actions here 

satisfy strict scrutiny, and they failed to do so. They presented no evidence that demonstrates a 

compelling governmental interest and instead provided confusing and conflicting reasoning 

behind why the state would bar younger voters from accessing mail ballots during a global, 

deadly pandemic. The State’s interest is particularly attenuated in this case, given that the data 

show that Texas aged under 65 comprise a majority of the COVID-19 cases reported. Ex. 45 at 

p. 1. 

23. In fact, the State’s given reasoning would increase the harm to the public health 

and safety of not only those Texans who are under the age of 65 and who would be unable to 

vote by mail, but also the safety of any Texans (even those over 65) who interact with 

individuals who voted in person because they were unable to vote by mail and who were exposed 

to the COVID-19 virus. 

24. Put simply, there is no compelling interest in imposing arbitrary obstacles on 

voters on account of their age in these circumstances, and thus Defendants’ conduct thus fails to 

meet strict scrutiny.

25. This Court concludes that Plaintiffs have established that they are likely to 

succeed on their as applied Twenty-Sixth Amendment claim. 

26. Alternatively, even if strict scrutiny does not applDefendants’ conduct is 

unconstitutional as it intentionally discriminates against voters on the basis of age.

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27. Where they have not applied strict scrutiny, federal courts have evaluated claims 

under the Twenty-Sixth Amendment using the Arlington Heights framework. See e.g. One Wis. 

Inst., Inc. v. Thomsen, 198 F.Supp.3d 896, 926 (W.D. Wis. 2016) (finding that the Twenty-Sixth 

Amendment's text is "patterned on the Fifteenth Amendment . . . suggest[ing] that Arlington 

Heights provides the appropriate framework.”). 

28. Under the Arlington Heights test, the court infers discriminatory intent through 

(1) the impact of the official action and whether it bears more heavily on one group than another; 

(2) the historical background of the decision; (3) the specific sequences of events leading up to 

the decision challenged in the case, including departures from normal procedures in making 

decisions and substantive departure; and (4) contemporary statements made by the governmental 

body who created the official action. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 

429 U.S. 252 (1977). 

29. Defendants’ decision to interpret the law in a discriminatory fashion and threaten 

criminal prosecution against those who advance a different determination is discriminatory 

particularly to voters under the age of 65. That decision bears more heavily on voters under 65 

especially during the COVID-19 pandemic, because if they are unable to access mail ballots, 

they will be forced to risk their lives, the lives of their loved ones, and the lives of the public atlarge in order to vote. The refusal to extend access to mail ballots to younger voters 

affirmatively disenfranchises thousands of Texas voters simply on the account of age. Voters 

age 65 and older will not face the same burden on the right to vote because they are able to 

access mail ballots and vote from the safety of their home, away from potential COVID-19 

carriers and spreaders. Voters under the age of 65 bear the burden of this application of the law 

more heavily than voters aged 65 and older because they will not be able to vote from the safety 

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of their homes. Thus, the impact of the official action bears more heavily on younger voters than 

another group—older voters. 

30. The background of Defendants’ decision also leads this Court to conclude there 

was discriminatory intent. Initially, a district court granted voters in Texas relief to vote 

absentee due to COVID-19 by a Texas state court judge. Ex. 49, p. 4-6. Despite this state 

court order, Attorney General Paxton issued an advisory, non-official opinion threatening to 

prosecute people and groups who complied with the state court ruling. Ex. 55. Defendant 

Paxton called the state court ruling an “unlawful expansion of mail-in voting.” General Paxton 

further opined that to help or advise a voter to seek a mail-in ballot pursuant to this provision of 

the Election Code was a crime. Defendant Paxton’s decision to threaten criminal sanctions is 

strong evidence of invidious discrimination. 

31. Further, Defendants’ actions regarding the state court proceedings are a departure 

from the legal norm and policy procedure. The Attorney General rarely, if ever, “opine[s] 

through the formal opinion process on questions ... that are the subject of pending litigation.” In 

a highly unusual manner, Defendant Paxton circumvented the State’s judicial process by 

announcing that he would criminally prosecute voters in defiance of the emerging court order. 

These significant departures from normalcy were all in service of preventing legal, registered 

voters from casting ballots without exposing themselves to a deadly virus. 

32. Thus, Arlington Heights factors have been satisfied as to Defendants’ conduct, 

and Plaintiffs have established that they are likely to succeed on their claim that Tex. Elec. Code 

§ 82.003 impermissibly discriminates on the basis of age, as applied, in violation of the TwentySixth Amendment. 

 

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ii. The Plaintiffs Will Succeed on Their Denial of Free Speech Claim 

33. This Court concludes that Plaintiffs are likely to prevail to prevail on their denial 

of free speech claim. 

34. Voters enjoy a “Right to Vote” as a form of political speech. Political speech, 

including the right to vote, is strongly protected as a “core First Amendment activity.” League of 

Women Voters of Fl. v. Detzner, 863 F. Supp.2d at 1158. 

35. When determining whether there has been a violation of this right, the court 

inquires as to (1) what sort of speech is at issue, and (2) how severe of a burden has been placed 

upon the speech. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Strict scrutiny is applied if the 

law “places a severe burden on fully protected speech and associational freedoms.” Lincoln 

Club of Orange County v. City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002). “[V]oting is of the 

most fundamental significance under our constitutional structure,” meaning the speech at issue is 

fully protected First Amendment activity. Illinois Bd. of Elections v. Socialist Workers Party, 

440 U.S. 173, 184 (1979). 

36. Political speech is at issue here. If not for Defendants’ conduct, Plaintiff TDP 

(and other campaigns and political groups) would be engaging in communications with voters 

concerning who is eligible to and how to vote by mail. Defendant Paxton has outwardly 

threatened to prosecute these communications. Ex. 55 at p. 3. Defendant Paxton has also 

threatened to criminally prosecute voters who do not meet his construction of the statutory 

conditions to vote absentee who attempt to vote by mail. 

37. Meanwhile, at least one candidate for the Republican Nomination for a seat in 

Congress has issued mailers encouraging all voters, regardless of Age, to vote by mail and her 

statements allege that she did so with advice from Defendant Paxton. Ex. 35. There is no 

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evidence this Republican candidate is being criminally investigated or prosecuted or the county 

where much of the district at issue in the campaign is located, has been targeted by Defendant 

Paxton’s letters and Texas Supreme Court Petition. 

38. These circumstances leave the Democratic Party and its candidates unsure 

whether only Democrats will be prosecuted. 

39. These circumstances, the evidence shows, hinders the free exchange of political 

speech. 

40. The burden on this speech is severe. Under Defendant Paxton’s interpretation of 

state law, voters face the choice between casting their ballot and paying the price of criminal 

prosecution. Especially given the visibility of the fallout from the Wisconsin primary election, 

voters are deeply fearful about. 

41. Defendants’ conduct does not meet strict scrutiny, and thus Plaintiffs have 

established that they are likely to succeed on their claim that their right to freedom of political 

speech was denied. Indeed, Defendants’ conduct cannot stand under any potential First 

Amendment standard. 

42. Even were the state courts to clarify the disability provision in favor of voters 

under the age of 65, in a timely fashion, which seems unlikely, the threats of prosecution, now 

widely disseminated, would not be completely cured. 

iii. The Plaintiffs Will Succeed on Their Void for Vagueness Claim 

43. This Court concludes that Plaintiffs are likely to succeed on their void for 

vagueness claim. 

44. A statute violates the Fourteenth Amendment on the basis of vagueness if its 

terms “(1) ‘fail to provide people of ordinary intelligence a reasonable opportunity to understand 

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what conduct it prohibits’ or (2) ‘authorize or even encourage arbitrary and discriminatory 

enforcement.’” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). When a statute 

infringes upon basic First Amendment freedoms, “a more stringent vagueness test should apply.” 

Id. at 246.

45. Criminal enactments are subject to a stricter vagueness standard because “the 

consequences of imprecision are . . . severe.” Hoffman Estates v. Flipside, Hoffman Estates, 

Inc., 455 U. S. 489, 498–499 (1982). Voters can face criminal prosecution under Tex. Elec. 

Code § 84.0041, and thus a stricter vagueness standard applies to it. The law must be specific 

enough to give reasonable and fair notice in order to warn people to avoid conduct with criminal 

consequences. Smith v. Goguen, 415 U.S. 566, 574 (1974). A statute must also establish 

minimal guidelines to govern enforcement. Id. at 574. 

46. Tex. Elec. Code § 82.001–4 concerns the right to vote, which is a form of political 

speech protected under the First Amendment. Thus, a more stringent vagueness test applies here 

as the statute infringes upon basic First Amendment freedoms and voters are threatened with 

criminal prosecution. 

47. Tex. Elec. Code § 82.001–4 provides that a voter is qualified to vote by mail if he 

(1) anticipates being absent from his county of residence on election day; (2) has an illness or 

other physical condition that disables him from appearing at the polling place; (3) is 65 or older; 

or (4) is confined in jail. Tex. Elec. Code §§ 82.001–4. Tex. Elec. Code § 82.002(a) states “a 

qualified voter is eligible for early voting by mail if the voter has a sickness of physical condition 

that prevents the voters from appearing at the polling place on election day without a likelihood 

of needing personal assistance or of injuring the voter’s health.” Id. A Texas state court judge 

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has stated that § 82.002(a) definition includes persons who are social distancing because of 

COVID-19. 

48. Defendant Paxton has issued varying and contradictory interpretations of Tex. 

Elec. Code § 82.001–4. Prior to the pandemic, Defendant Paxton advised that there was no 

specific definition of disability required to be met in order to qualify to use an absentee ballot. 

Op. Tex. Att’y Gen. No. KP- 0009 (2015). Defendant Paxton has also previously opined that a 

court-ruled sexual deviant under the age of 65 meets the definition of “disabled” under this 

statute. Op. Tex. Att’y Gen. No. KP- 0149 (2017). 

49. Defendant Paxton’s recent interpretations of Tex. Elec. Code § 82.001–4 renders 

the statute vague as it is unclear which voters qualify to vote using a mail ballot under the law. 

The statute itself does not clearly define the phrase “physical condition that prevents the voters 

from appearing at the polling place on election day.” Tex. Elec. Code § 82.001–4The multiple 

constructions of Tex. Elec. Code § 82.001–4 by Defendant Paxton and the state court fail to 

provide people of ordinary intelligence a reasonable opportunity to understand if they are 

unqualified to access a mail ballot, and authorize and encourage arbitrary and discriminatory 

enforcement. 

50. Every day that goes by, Texans are being subjected to criminal prosecuting threat 

if they are under age 65 and seek to vote by mail before the July 2 deadline.

51. The statute does not establish minimal guidelines to govern enforcement by 

Defendants or other state actors. Defendant Paxton has threatened to prosecute elected officials 

and voters who access mail ballots as provided by the state court because of the COVID-19 

pandemic. He issued a letter stating that “[t]o the extent third parties advise voters to apply for a 

mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those 

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third parties to criminal sanctions imposed by Election Code section 84.0041.” Defendant 

Paxton’s repeated assertions of prosecution of voters and threatening of election officials who 

seek to comply with a state court order is evidence of a lack of guidelines. 

52. Voters have received conflicting instructions on their ability to access mail 

ballots; one from the Texas judiciary that orders voters who fear COVID-19 to qualify for a mail 

ballot and instructions from Defendant Paxton which threatens voters who follow the Texas 

court order with prosecution. 

53. Due Process has been violated as the interpretation by Defendant Paxton and the 

Election Code itself provide no definitive standard of conduct and instead provides Defendants 

with unfettered freedom to act on nothing but their own preference and beliefs. 

54. Tex. Elec. Code § 82.001–4 is unconstitutionally vague in violation of the 

Fourteenth Amendment Due Process Clause. 

55. Plaintiffs have established that they are likely to succeed on their claim that the 

State’s interpretation of the law and the law itself are unconstitutionally vague in violation of the 

Due Process Clause. 

iv. The Plaintiffs Will Succeed on Their Voter Intimidation Claim 

56. This Court concludes that Plaintiffs are likely to succeed on their voter 

intimidation claim. 

57. Title 42 U.S.C. § 1985, part of the Civil Rights Act of 1871, “creates a private 

civil remedy for three prohibited forms of conspiracy to interfere with civil rights under that 

section.” Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010). 

58. Plaintiff must prove the following elements for a claim under § 1985(3): (1) a 

conspiracy of two or more persons; (2) for the purpose of depriving, directly or indirectly, a 

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person or class of persons of the equal protection of the laws, or of equal privileges and 

immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) which causes 

injury to a person or property, or deprives her of a right or privilege of a United States citizen. 

See Hilliard v. Ferguson, 30 F.3d 649, 652– 53 (5th Cir. 1994). 

59. The right to vote in federal elections is a right of national citizenship protected 

from conspiratorial interference by the provision of 42 USC § 1985(3) pertaining to conspiracies 

to deprive persons of rights or privileges. See 42 USC § 1985(3) (preventing persons from 

conspiring to “prevent by force, intimidation, or threat, any citizen who is lawfully entitled to 

vote, from giving his support or advocacy in a legal manner”); Means v. Wilson, 522 F.2d 833 

(8th Cir. 1975), certiorari denied 424 U.S. 958. 

60. Voters are legally entitled access to the franchise, and the right to vote is a 

fundamental right. Reynolds v. Sims, 377 U.S. 533, 561-562 (1964). This right entitles voters to 

access to the franchise free from unreasonable obstacles. See Common Cause Ga. v. Billups, 406 

F. Supp. 2d 1326 (N.D. Ga. 2005); see also Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014). 

61. Defendants have worked in concert with others in threatening criminal 

prosecution, an act in furtherance of this conspiracy to deprive access to the franchise from legal, 

rightful voters. This has injured Plaintiffs, and this injury has been caused by state officials 

acting in concert with others to prevent legal voters from casting a ballot free from fear of risk of 

transmission of a deadly illness or criminal retribution. 

62. Defendant Paxton issued an advisory opinion just as a state court was ruling that 

Texas voters are entitled to a mail-in ballot because of the risk of transmission of COVID-19. 

Ex. 55 at p.1. In this advisory opinion, Defendant Paxton wrote: “[T]o the extent third parties 

advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such 

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activity could subject those third parties to criminal sanctions imposed by Election Code section 

84.0041.” Ex. 55 at p. 5. He also claimed that expanding mail ballot eligibility to all Texans “will 

only serve to undermine the security and integrity of our elections.” Defendant Paxton’s 

statements operate to discourage voters from seeking mail-in ballots because of their fear of 

criminal sanction or victimization by fraud, and have the intention and the effect of depriving 

legally eligible voters’ access to the franchise. 

63. Plaintiffs are likely to succeed on the merits of their claim that Defendant 

Paxton’s official actions amount to voter intimidation in violation of Title 42 USC § 1985(3). 

v. The Defendants Violated the Equal Protection Clause of the 14th 

Amendment 

64. The Defendants, who are state actors and/or acting under color or law as 

administrators of elections, have violated the Equal Protection Clause of the Fourteen 

Amendment by creating an unconstitutional burden on the fundamental right to vote for those 

under the age of 65. 

65. The Defendants, who are state actors and/or acting under color or law as 

administrators of elections, have also violated the Equal Protection Clause of the Fourteen 

Amendment by creating an unconstitutional, racially discriminatory burden on the fundamental 

right to vote. 

66. The Equal Protection Clause “is essentially a mandate that all persons similarly 

situated must be treated alike.” Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). 

When a “challenged government action classifies or distinguishes between two or more relevant 

groups,” courts must conduct an equal protection inquiry to determine the validity of the 

classifications. Quth v. Strauss, 11 F.3d 488, 491 (5th Cir. 1993). 

Case 5:20-cv-00438-FB Document 52 Filed 05/14/20 Page 34 of 40
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67. First, Defendants have unconstitutionally burdened Plaintiffs’ right to vote as set 

forth under the Anderson-Burdick analysis. 

68. Because voting is a fundamental right (Harper v. Virginia State Bd. Of Elections, 

383 U.S. 663, 667 (1966)), state election laws or enactments that place a burden on the right to 

vote are evaluated under the Anderson-Burdick analysis. Under that analysis, a court must weigh 

“the character and magnitude of the asserted injury to the rights protected by the First and 

Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put 

forward by the State as justifications for the burden imposed by the rule.” Burdick v. Takushi, 

504 U.S. at 434. If the burden on the right to vote is severe, a court will apply strict scrutiny. 

The classification created by the state must promote a compelling governmental interest and be 

narrowly tailored to achieve this interest if it is to survive strict scrutiny. Plyer v. Doe, 457 U.S. 

202, 216-17 (1982). 

69. Under strict scrutiny, Defendants are unable to supply any legitimate or 

reasonable interest to justify such a restriction. Defendants’ proffered interests in denying 

millions of Texans a mail-in ballot amidst a pandemic are that (1) mail-in ballots are a special 

protection for the aged or disabled and (2) mail ballots enable election fraud. Both reasons, even 

taken at face-value, fail to outweigh the burden voters will face in exercising their right to vote 

before the threat of COVID-19 can be realistically be contained. Anyway, Defendants fail to 

explain why, under their advanced interests, that older voters are so highly valued above those of 

younger voters that the rampant fraud Defendants claim mail-in voting provides is justified. 

70. Further, the statutory interpretation espoused by Defendants is not narrowly 

tailored enough to serve the proffered interests. Tex. Elec. Code § 82.001, et seq., extends the 

“special protection” of a vote by mail-in ballot to not just the aged or disabled but also to voters 

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confined in jail, voters who have been civilly committed for sexual violence, and voters who are 

confined for childbirth. 

71. Second, mail-in ballots have built-in protections to ensure their security, including 

many criminal penalties for their misuse—protections that Defendant Paxton has publicly 

expressed a willingness to pursue. Tex. Elec. Code § 86.001, et seq. “Even under the least 

searching standard of review we employ for these types of challenges, there cannot be a total 

disconnect between the State's announced interests and the statute enacted.” Veasey v. Abbott, 

830 F.3d 216, 262 (5th Cir. 2016) (citing St. Joseph Abbey v. Castille, 712 F.3d 215, 225–26 (5th 

Cir. 2013)). 

72. Even if this court finds that this statute should receive only rational basis review, 

as is appropriate where the burden is found to be more minimal, Defendants cannot proffer any 

rational state interest to justify their statutory interpretation. There is no rational state interest in 

forcing the majority of its voters to visit polls in-person during a novel global pandemic, thus 

jeopardizing their health (and the health of all those they subsequently interact with). There is 

certainly no rational interest in fencing out voters under the age of 65 because it would introduce 

rampant fraud, while allowing older voters to utilize mail ballots and allowing the alleged 

rampant fraud therewith. Nor do Defendants have a rational state interest in fencing out from the 

franchise a sector of the population because of the way they may vote. “‘The exercise of rights so 

vital to the maintenance of democratic institutions’ . . . cannot constitutionally be obliterated 

because of a fear of the political views of a particular group of bona fide residents.” U.S. v. State 

of Tex., 445 F. Supp. 1245, 1260 (S.D. Tex. 1978), aff’d sub nom. Symm v. United States, 439 

U.S. 1105, 99 S. Ct. 1006, 59 L. Ed. 2d 66 (1979). Furthermore, the state has no interest in 

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allowing a situation where the Attorney General can sow confusion, un-even election 

administration and threaten criminal prosecutions on these circumstances. 

73. Thus, this Court concludes that Defendants, who are state actors and/or acting 

under color or law as administrators of elections, have violated the Equal Protection Clause of 

the Fourteen Amendment by creating an unconstitutional burden on the fundamental right to vote 

for those under the age of 65. 

74. In addition, this Court concludes that Defendants, who are state actors and/or 

acting under color or law as administrators of elections, have also violated the Equal Protection 

Clause of the Fourteen Amendment by creating an unconstitutional, racially discriminatory 

burden on the fundamental right to vote. 

75. The Fourteenth Amendment to the U.S. Constitution prohibits states from treating 

U.S. citizens differently based on their race. 

b. Without Preliminary Relief, Plaintiffs Are Suffering Irreparable Harm 

76. This Court concludes Plaintiffs are suffering irreparable harm in the absence of 

injunctive relief. 

77. Voting is a constitutional right for those that are eligible, and the violation of 

constitutional rights for even a minimal period of time constitutes irreparable injury justifying 

the grant of a preliminary injunction. See Deerfield Med. Ctr. V. City of Deerfield Beach, 661 

F.2d 328, 338 (5th Cir. Unit B. Nov. 1981) (citing, e.g. Elrod v. Burns, 427 U.S. 347, 373 

(1976); DeLeon v. Perry, 975 F. Supp. 2d 632, 663 (W.D. Tex. 2014), aff’d sum nom. DeLeon v. 

Abbot, 791 F3d 619 (5th Cir. 2015) (“Federal courts at all levels have recognized that violation 

of constitutional rights constitutes irreparable harm as a matter of law.”); see also Mitchell v. 

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Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right 

is involved, most courts hold that no further showing of irreparable injury is necessary.”). 

78. In addition, forcing voters to unnecessarily risk their lives in order to practice 

their constitutional rights while allowing other voters a preferred status so that they do not have 

to face this same burden, is also irreparable injury. 

79. Leaving the elections conditions as they are is itself a harm. TDP and these 

individual voters are held up, every day by the conflicting state court order and Paxton’s 

guidance. If the Plaintiff voters apply for ballots by mail, right now, as they would otherwise be 

entitled to do, they subject themselves to criminal investigation. If they wait, they may miss the 

deadline, risk their application or ballot do no travel in the mail timely or otherwise gets held up 

with a last minute rush of vote by mail applications. Meanwhile, TDP is unable to counsel and 

advise its members as to who can vote in its primary runoff and how. 

c. The Continued Injury if the Injunction is Denied Outweighs Any Harm that 

Will Result if the Injunction is Granted 

80. This Court concludes that any harm to Defendants is outweighed by the 

continued injury to Plaintiffs if an injunction does not issue. 

81. As explained above, the injury Plaintiffs are suffering in the absence of an 

injunction, is severe. 

82. No harm occurs when the State permits all registered, legal voters the right to vote 

by utilizing the existing, safe method that the State already allows for voters over the age of 65. 

III. Preliminary Relief Will Serve the Public Interest 

83. This Court concludes that the injunctive relief that Plaintiffs seek will not disserve 

the public interest, and, to the contrary, will serve the public interest because it will protect 

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prevent violation of individuals’ constitutional rights and will prevent additional cases of a 

deadly infectious disease that has already taken the lives of over a thousand Texans. 

84. It is “always” in the public interest to prevent violations of individuals’ 

constitutional rights, Deerfield Med. Ctr., 661 F.2d at 338-39, and it is in the public interest not 

to prevent the State from violating the requirements of federal law. Valle del Sol Inc. v. Whiting, 

732 F.3d 1006, 1029 (9th Cir. 2013); c.f. Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (stating 

that protecting the right to vote is of particular public importance because it is “preservative of 

all rights.”) (citing Reynolds v. Sims, 377 U.S. 533, 562 (1964)). 

85. Moreover, it is the public policy of the State of Texas to construe any 

constitutional or statutory provision which restricts the right to vote liberally: “[a]ll statutes 

tending to limit the citizen in his exercise of this right should be liberally construed in [the voter’s] 

favor.” Owens v. State ex rel. Jennett, 64 Tex. 500, 502 (1885). The public policy the state’s 

executive branch attempts to advance in this case does not appear clearly in any state legislative 

enactment. 

86. Thus, an injunction against Defendants will serve the public interest. 

Respectfully submitted, 

TEXAS DEMOCRATIC PARTY 

By: /s/ Chad W. Dunn 

Chad W. Dunn 

General Counsel 

State Bar No. 24036507 

Brazil & Dunn, LLP 

4407 Bee Caves Road, Suite 111 

Austin, Texas 78746 

Telephone: (512) 717-9822 

Facsimile: (512) 515-9355 

chad@brazilanddunn.com 

 

K. Scott Brazil 

State Bar No. 02934050 

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Brazil & Dunn, LLP 

13231 Champion Forest Drive, Suite 406 

Houston, Texas 77069 

Telephone: (281) 580-6310 

Facsimile: (281) 580-6362 

scott@brazilanddunn.com 

Dicky Grigg 

State Bar No. 08487500 

Law Office of Dicky Grigg, P.C. 

4407 Bee Caves Road, Suite 111 

Austin, Texas 78746 

Telephone: 512-474-6061 

Facsimile: 512-582-8560 

dicky@grigg-law.com 

Martin Golando 

The Law Office of Martin Golando, PLLC 

SBN #: 24059153 

N. Saint Mary’s, Ste. 700 

San Antonio, Texas 78205 

(210) 892-8543 

martin.golando@gmail.com 

ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has been sent via 

the Court’s electronic filing system to all counsel of record on May 14, 2020. 

 /s/ Chad W. Dunn 

 Chad W. Dunn 

Case 5:20-cv-00438-FB Document 52 Filed 05/14/20 Page 40 of 40