Ruth Hughs’ Motion to Dismiss Page 1

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, §

§

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

§

League of United Latin American Citizens, §

And Texas League of United Latin American §

Citizens, §

Plaintiffs-Intervenors, §

§

v. §

§

Greg Abbott, Governor of Texas; Ruth §

Hughs, Texas Secretary of State, Ken Paxton, §

Texas Attorney General, DanaDebeauvoir, §

Travis County Clerk, and Jacquelyn F. §

Callanen, Bexar County Elections §

Administrator, §

Defendants. §

DEFENDANT RUTH HUGHS’ MOTION TO DISMISS PLAINTIFF-INTERVENORS’

AMENDED COMPLAINT

Plaintiff-Intervenor’s challenge a provision of the Texas Election Code that allows mail-in 

voting for any voter at least 65 years or older, claiming the provision is unconstitutional and violates 

the Voting Rights Act. Plaintiffs filed this lawsuit early in the COVID-19 pandemic seeking injunctive 

relief in advance of impending primary and general elections. A year later, Plaintiff-Intervenor’s have 

intervened and filed an Amended Complaint that—Like Plaintiffs’ Second Amend Complaint—

wholly ignores the impact of the wide availability of highly effective vaccines against COVID-19. Their 

Complaint relies heavily on unsupported conjecture about the COVID-19 pandemic and they allude 

to “proposed bills” not yet enacted. Plaintiff-Intervenors theorize those future conditions will 

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combine with Texas’s mail-in voting requirements to burden their rights in future elections. They use 

those speculative assertions as levers to elevate claims of unlawful burden arising from in-person 

voting—the predominate method of voting in this State. The emphasis Plaintiff-Intervenors place on 

such speculative harm underscores their inability to plausibly allege that Texas’s age requirement for 

mail-in voting “on its own” is unconstitutional and violative of the Voting Rights Act. Defendant 

Ruth Hughs, in her official capacity as Texas Secretary of State, respectfully seeks the dismissal of the 

claims asserted against her.

1 Plaintiff-Intervenors lack standing to assert their speculative claims; their

claims are unripe; and the claims fail on the merits as pleaded. 

I. BACKGROUND

A. Texas law allows voters to vote by mail only in limited circumstances.

For more than a century, Texas law has required most voters to cast their ballots in person 

either on election day, Tex. Elec. Code ch. 64, or during an early-voting period prescribed by the

Legislature, id. § 82.005. The only exceptions are for voters who face unique hardships ingoing to the 

polls. Voters may apply to vote by mail in only one of four instances—if they: (1) anticipate being 

absent from their county of residence; (2) have a disability that prevents them from appearing at the 

polling place; (3) are 65 or older; or (4) are confined in jail. TEX. ELEC. CODE §§ 82.001-.004. 

“Disability” for the purposes of the Election Code is defined to allow a qualified voter to vote by mail 

if the “voter has a sickness or physical condition that prevents the voter from appearing at the polling 

place on election day without a likelihood of needing personal assistance or of injuring the voter’s 

health.” Id. § 82.002(a).

1 Plaintiff-Intervenors’ Amended Complaint removed reference to Governor Greg Abbott and 

Attorney General Ken Paxton as defendants. Even if Plaintiffs had named them as defendants,

sovereign immunity would bar any claims against them. Tex. Democratic Party v. Abbott, 978 F.3d 168, 

180–81 (5th Cir. 2020).

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B. Procedural posture of the case. 

Plaintiffs filed this action on April 7, 2020 and sought a preliminary injunction that was 

substantively identical to the injunction that plaintiffs sought in state court. Doc. 1. On May 19, this 

Court issued its opinion and order on the preliminary injunction requiring no-excuse-mail-in balloting 

in Texas. Doc. 90. State Defendants appealed and sought a stay of the injunction pending the appeal. 

A Fifth Circuit panel granted the stay. See Tex. Democratic Party v. Abbott, 961 F.3d 389, 397 (5th Cir. 

2020). On the merits, Plaintiffs defended the injunction on the grounds of their Twenty-Sixth 

Amendment claims only. The Fifth Circuit ultimately vacated the injunction and remanded the case 

back to this Court. Tex. Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020). On March 8, 2021, the 

Court granted Plaintiff-Intervenor’s intervention. Doc. 134. On April 16, 2021, Plaintiffs and PlaintiffIntervenors filed amended complaints.

II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

A. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a federal court to dismiss a claim for lack 

of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “A case is properly dismissed for lack of subject 

matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case.” Home 

Builders Ass’n of Miss, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The 

party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. 

United States, 281 F.3d 158, 161 (5th Cir. 2001). “[T]here is a presumption against subject matter 

jurisdiction that must be rebutted by the party bringing an action to federal court.” Coury v. Prot, 85 

F.3d 244, 248 (5th Cir. 1996) (citation omitted). Under Rule 12(b)(1), the Court may consider any of 

the following: “(1) the complaint alone; (2) the complaint supplemented by the undisputed facts 

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's 

resolution of disputed facts.” Robinson v. TCI/US West Commc’ns Inc., 117 F.3d 900, 904 (5th Cir. 1997).

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B. Plaintiff-Intervenors lack standing to complain of speculative future election policies

and pandemic conditions. 

Standing is an indispensable element of federal court jurisdiction. Lujan v. Defs. of Wildlife, 504 

U.S. 555, 561 (1992). To establish standing, a plaintiff must show: (1) an injury-in-fact that is (2) fairly 

traceable to the defendant’s challenged action (causation) and that is (3) redressable by a favorable 

decision (redressability). Friends of the Earth, Inc. v. Laidlaw Envt’l. Servs. (TOC), Inc., 528 U.S. 167, 180–

81 (2000). All three requirements are “an indispensable part of the plaintiff’s case,” and the party 

seeking to invoke federal jurisdiction bears the burden to establish them. Lujan, 504 U.S. at 561. To 

establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected 

interest” that is “concrete and particularized” and “actual or imminent, not conjectural or 

hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks omitted).

Plaintiff-Intervenors claim harm caused by Section 82.003 when combined with future pandemic 

conditions and unenacted “proposed bills.” Doc. 142 ¶¶35, 46–47, 53–54, 61. But such claims are 

purely “conjectural.” Lujan, 504 U.S. at 560. Plaintiff-Intervenors wholly ignore the impact of the 

introduction of highly effective vaccines against COVID-19 when they speculate about future voter 

behavior. Moreover, Plaintiff-Intervenor’s claims ignore that Texas experienced record voter turnout 

in the 2020 presidential election despite the pandemic.2 Plaintiff-Intervenor’s also rely on unenacted 

“proposed bills” in support of their claimed harm. Doc. 142 at ¶35. Such assertions do not support 

any injury to Plaintiff-Intervenors that is actual or imminent. Further, they cannot plausibly claim that

injuries from laws not yet enacted are “fairly traceable to the challenged action of [the Secretary],” or 

redressable by the Secretary. Id. Plaintiff-Intervenors lack standing to complain of such speculative 

harm. 

2 Texas Secretary of State, Turnout and Voter Registration Figures (1970-current), 

https://www.sos.state.tx.us/elections/historical/70-92.shtml.

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C. Plaintiff-Intervenors claims regarding unspecified future election policies and 

pandemic conditions are not ripe. 

Plaintiff-Intervenors claims are not ripe because they rely—in whole or in part—on future 

contingent events, namely the passage of unspecified “proposed bills” as well as uncertain pandemic 

conditions. “Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of 

premature adjudication, from entangling themselves in abstract disagreements ... [until a] decision has 

been formalized and its effects felt in a concrete way by the challenging parties.’ ” Nat'l Park Hosp.

Ass’n v. Dep't of Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,

148–49 (1967)). Determining whether an issue is ripe for judicial review requires considering “[t]he 

fitness of the issues for judicial decision and ... the hardship to the parties of withholding court 

consideration.” Id. at 809; see Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for 

adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may 

not occur at all.” (citation omitted)).

Plaintiff-Intervenors claims are not fit for judicial decision and they would suffer no hardship 

from the court withholding consideration. Obviously, the Court cannot analyze policies and laws that 

have not been enacted yet. Nor should the Court evaluate the safety of in-person voting in future 

elections in light of the recent introduction of widely available vaccines against COVID-19

dramatically altering the trajectory of the pandemic. Finally, Plaintiff-Intervenors cannot claim 

hardship in withholding court consideration when they do not identify any impending election in 

which voting in-person will cause concrete harm. Plaintiff-Intervenors’ reliance on future contingent 

events makes their claims unripe. 

III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss all or part of a complaint 

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a 

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motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on 

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While “[t]he ‘court accepts all well-pleaded 

facts as true, viewing them in the light most favorable to the plaintiff,’” In re Katrina Canal Breaches 

Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 

369 F.3d 464, 467 (5th Cir. 2004)), a plaintiff must plead specific facts and cannot rely merely on 

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” Twombly, 550 

U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

B. The Fifth Circuit’s Opinion in this case forecloses Plaintiff-Intervenors’ Twenty-Sixth 

Amendment Claim.

The Fifth Circuit has already held that the Twenty-Sixth Amendment “claim fails because 

conferring a benefit on another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth 

Amendment right to vote.” Abbott, 978 F.3d at 194. Because Section 82.003’s age distinction does not 

offend the Twenty-Sixth Amendment, Plaintiff-Intervenor’s claim must be dismissed. 

C. Plaintiff-Intervenors do not plead viable claims under Section 2 of the Voting Rights 

Act. 

Plaintiff-Intervenors’ claim that Section 82.003 causes a discriminatory result under Section 2 

must fail as a matter of law. They allege that Texas’s Latino voters are disenfranchised in part “[a]s a 

result of their unique vulnerability to COVID-19.” Doc. 142 ¶¶46–47. Plaintiff-Intervenor’s 

speculative claim fails as a matter of law for the purposes of stating a claim for which relief may be 

granted under Rule 12(b)(6). 

Plaintiff-Intervenors make a wholly conclusory allegation that the Secretary has violated 

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (now codified at 52 U.S.C. § 10301). They have 

failed to plead any of the substantive requirements or specific facts to make out a Section 2 claim. To 

plausibly allege a violation of Section 2, Plaintiff-Intervenors must show that the challenged “standard, 

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practice, or procedure” has a discriminatory effect under factors utilized by the Supreme Court in 

Thornburg v. Gingles, 478 U.S. 30 (1986). The relevant portions of § 10301 read: 

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure 

shall be imposed or applied by any State or political subdivision in a manner which 

results in a denial or abridgement of the right of any citizen of the United States to 

vote on account of race or color[.]

. . . 

(b) A violation of subsection (a) is established if, based on the totality of circumstances, 

it is shown that the political processes leading to nomination or election in the State 

or political subdivision are not equally open to participation by members of a class of 

citizens protected by subsection (a) in that its members have less opportunity than 

other members of the electorate to participate in the political process and to elect 

representatives of their choice.

52 U.S.C. § 10301 (emphasis added). 

First, the Fifth Circuit has already held in this case that Section 82.003 does not result in a 

“denial or abridgement” of the right to vote under the Twenty-Sixth Amendment—even in the 

context of the pandemic in an as-applied challenge. 978 F.3d at 192. Second, because PlaintiffIntervenor base their Section 2 claims on speculation about future pandemic conditions, the Court 

not only lacks jurisdiction over the claim, but the claim does not meet the causation requirement for 

Section 2 claims under the totality-of-the-circumstances test. 

If offering mail-in ballots to those over sixty-five years of age does not impose a discriminatory 

burden on the basis of age within the meaning of a constitutional amendment specifically prohibiting 

denials or abridgments on the basis of age, Plaintiff’s quest to invalidate the provision based on racial 

discrimination claims is no less implausible. See Frank v. Walker, 768 F.3d 744, 753 (7th Cir. 2014) 

(even though a disparate outcome is shown, state does not “deny” anyone the right to vote under 

Section 2 by imposing voter ID requirements unless the disparate result is attributable to 

discrimination by the state). The provision of a privilege to those over sixty-five takes nothing away 

from the right to vote for those not entitled to no-excuse mail-in ballots, even in the context of the 

global COVID-19 pandemic. Abbott, 978 F.3d at 192–93. Accordingly, the Court should dismiss 

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Plaintiff’-Intervenors’ claim under Section 2 because Section 82.003 does not deny or abridge the right 

to vote as a matter of law.

Even if Plaintiff-Intervenors had plausibly alleged a disparate result under Texas’s election 

scheme, which they have not, they still have not plausibly alleged a viable Section 2 claim. Section 2 

requires the plaintiff to establish (1) the challenged law causes minority voters’ inability to elect 

candidates of their choice, Gingles, 478 U.S. at 50; (2) the inability to elected their preferred candidates 

is “on account of race,” 52 U.S.C. § 10301(a); and (3) “under the ‘totality of circumstances,’ [minority

voters] do not possess the same opportunities to participate in the political process and elect 

representatives of their choice enjoyed by other voters,” LULAC, Council No. 4434 v. Clements, 999 

F.2d 831, 849 (5th Cir. 1993) (en banc).

Plaintiff-Intervenors have not pleaded a cognizable claim under this standard because they 

have not alleged that Section 82.003 has caused minority voters’ inability to elect their preferred 

candidates under this regime. Instead, Plaintiff-Intervenors complain about “proposed bills” and 

future pandemic conditions. In doing so, Plaintiff-Intervenors necessarily allege a speculative harm 

that does not allow this Court to consider the “totality of the circumstances” in deciding whether a 

violation of Section 2 is even plausibly alleged. See 52 U.S.C. § 10301; Clements, 999 F.2d at 849. In 

addition, even if Plaintiff-Intervenors could establish a “lack of success at the polls” for minority 

voters, their claims should still be dismissed for failing to plausibly allege that “the reasons for, or 

causes of, these electoral losses” are “racial” and not “partisan.” Clements, 999 F.2d at 853–54. Only 

by requiring such pleadings can Courts ensure that Section 2 is not “loosed from its racial tether.” Id.

(cleaned up). “The Voting Rights Act does not guarantee that nominees of the Democratic Party will 

be elected, even if black voters are likely to favor that party’s candidates. Rather, § 2 is implicated only 

where Democrats lose because they are black, not where blacks lose because they are Democrats.” 

Clements, 999 F.2d at 854 (quotation and citation omitted).

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For these reasons, the Court should dismiss Plaintiff-Intervenors’ claim under Section 2 of the 

Voting Rights Act. 

D. Section 82.003 easily passes the rational-basis review applicable to PlaintiffIntervenors’ challenges under the First and Fourteenth Amendments. 

The Fifth Circuit did not decide the applicable standard of review that this Court must apply 

to Plaintiffs’ constitutional claims but noted in dicta that “age-based distinctions are evaluated [under 

rational-basis review] in the usual case” and that “we have not seen any authority to support that it 

would require strict scrutiny as the district court initially applied.” Abbott, 978 F.3d at 194. PlaintiffIntervenors’ multifarious claims that Texas has abridged their “right to vote” fail because the right to 

vote is not at issue in this case. Instead, this case turns on a “claimed right to receive [and case] absentee 

ballots.” McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807 (1969). Texas permits the PlaintiffIntervenors to vote by other means, and the Constitution does not guarantee them a right to vote by 

mail. Id. McDonald instructs that the “right to vote” is not “at stake” here and that rational-basis review 

applies. Id. at 807. At heart, Plaintiff-Intervenors claims are for age discrimination, and unlike racebased distinctions, “States may discriminate on the basis of age without offending the Fourteenth 

Amendment, if the age classification in question is rationally related to a legitimate state interest.” 

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83–84 (2000). Again, the mandate rule prevents the relitigation 

of this issue. Lee, 385 F.3d at 321. 

Texas’s decision to facilitate voting by those over 65, which is common among the States, is 

“rationally related to legitimate government interests.” Washington v. Glucksberg, 521 U.S. 702, 728 

(1977). Individuals over 65 (as a group) face greater challenges in attending the polls. For example, 

many reside in nursing homes and have limited mobility. Though other may also have difficulties 

reaching the polls, the line need not be “perfectly tailored to that end,” so long as the distinction is 

not arbitrary. Box v. Planned Parenthood of Ind. &., Inc., 139 S. Ct. 1780, 1782 (2019). Texas’s Legislature 

may “take on step at a time, addressing itself to the phase of the problem which seems most acute.” 

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F.C.C. v. Beach Commc’ns Inc., 508 U.S. 307, 316 (1993). That laws allowing the elderly to vote by mail 

have existed across multiple States3 without challenge for 45 years indicates that they are at least 

rational.

E. Alternatively, Plaintiff-Intervenors’ claims under the First and Fourteenth 

Amendments fail even under the Anderson/Burdick test. 

Even if the Court were to conclude that the stricter Anderson/Burdick test applies, PlaintiffIntervenors have failed to state a claim. Because “[e]very decision that a state makes in regulating an 

election will, inevitably, result in somewhat more inconvenience for some voters than for others,” the 

Supreme Court has developed a balancing test for claims related to the franchise. Lee v. Va. State Bd. 

of Elections, 843 F.3d 592, 601 (4th Cir. 2016). Under this standard, the Court must first identify the 

relevant state action, and then “weigh ‘the character and magnitude of the asserted injury’” to PlaintiffIntervenors’ constitutionally protected right “against ‘the precise interests put forward by the State as 

justifications for the burden imposed.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 

U.S. 780, 789 (1983)). State actions that impose a “severe” burden on the right to vote are closely 

scrutinized. Id. “Lesser burdens, however, trigger less exacting review.” Timmons v. Twin Cities Area 

New Party, 520 U.S. 351, 358 (1997). Courts are careful when identifying the nature of the state action 

because “[t]o deem ordinary and widespread burdens severe would be to subject virtually every 

electoral regulation to strict scrutiny”—an outcome “the Constitution does not require.” Clinman v. 

Beaver, 544 U.S. 581, 593 (2005). 

Texas’s law requiring most voters to vote in person is justified by the State’s “compelling 

interest in preserving the integrity of its election process.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 

U.S. 214, 231 (1989). As the Supreme Court has explained, the “risk of voter fraud is real,” and it 

3 E.g., Ind. Code § 3-11-10-24(a)(5); Ky. Rev. Stat § 117.085(a)(8); Miss. Code § 23-1415-715(b); La 

Stat. § 18:1303(J); Tenn. Code § 2-6-201(5)(A); Tex. Elec. Code § 82.003. 

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“could affect the outcome of a close election.” Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181, 195-96

(2008). Moreover, courts around the country—including this one—have recognized that “the 

potential and reality of [vote] fraud is much greater in the mail-in-ballot context than with in-person 

voting.” Veasey, 830 F.3d at 239; id. at 306 n. 46 (Jones, J. , concurring in part and dissenting in part); 

Purcell, 549 U.S. at 4; Griffin v. Roupas, 385 F.3d 1128, 1130-31 (7th Cir. 2009); cf. Crawford, 553 U.S. at 

225 (Souter, J., dissenting) (“absentee-ballot fraud . . . is a documented problem”).

Plaintiff-Intervenors have failed to state a claim under the Anderson/Burdick framework 

because they do not credibly allege that in-person voting constitutes a burden on their right to vote. 

Instead, they invoke unenacted laws and speculation about future pandemic conditions to elevate their 

claims of burden. For reasons previously discussed, supra 3–5, the Court lacks jurisdiction over such 

claims. The Court should hold that in-person voting “on its own” does not constitute any burden on 

Plaintiff-Intervenors’ Constitutional rights under the First and Fourteenth Amendments. They have 

therefore failed to state a claim for relief. 

IV. CONCLUSION

The Court should dismiss this suit for lack of jurisdiction or for failure to state a claim for 

which relief can be granted.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

GRANT DORFMAN

Deputy First Assistant Attorney General

SHAWN COWLES

Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT

Chief – General Litigation Division

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/s/ Matthew Bohuslav

MATTHEW BOHUSLAV

Texas Bar No. 24069395

CORY A. SCANLON

Texas Bar No. 24104599

Assistant Attorneys General

Office of the Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Phone: 512-463-2120

Fax: 512-320-0667

matthew.bohuslav@oag.texas.gov

cory.scanlon@oag.texas.gov

Counsel for Defendant Ruth Hughs 

CERTIFICATE OF SERVICE

I hereby certify that on May 14, 2021 a true and correct copy of the foregoing document was 

served via the Court’s CM/ECF system to all counsel of record.

/s/ Matthew Bohuslav

MATTHEW BOHUSLAV

Assistant Attorney General

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