Defendant 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 PLAINTIFFS’ SECOND

AMENDED COMPLAINT

Plaintiffs 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. They filed this lawsuit early in the COVID-19 pandemic seeking injunctive relief in 

advance of impending primary and general elections. A year later, with highly effective vaccines against 

COVID-19 widely available, their Second Amended Complaint relies heavily on unsupported

conjecture about the trajectory of the COVID-19 pandemic and future “election policies” not yet 

enacted. Plaintiffs theorize those future conditions will combine with Texas’s mail-in voting

requirements to burden their rights in future elections. Plaintiffs use those speculative assertions as 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 1 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 2

levers to elevate claims of unlawful burden arising from in-person voting—the predominate method 

of voting in this State. The emphasis Plaintiffs 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 Plaintiffs 

lack standing to assert their speculative claims; their claims are unripe and barred by sovereign 

immunity; 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).

B. Procedural posture of the case. 

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

1 Plaintiff’s Second 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 Plaintiffs’ claims against them. Tex. Democratic Party v. Abbott, 978 F.3d 168, 180–

81 (5th Cir. 2020).

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 2 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 3

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 April 16, 2021, 

Plaintiffs and Plaintiff-Intervenors 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).

B. Plaintiffs 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 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 3 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 4

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).

Plaintiffs emphasize harm caused by Section 82.003 when combined with unenacted “election 

policies” and future pandemic conditions. Doc. 141 ¶¶15–20, 81, 84, 86, 88, 92, 95. But such claims 

are purely “conjectural.” Lujan, 504 U.S. at 560. For example, Plaintiffs vaguely allude to “developing 

strains of the coronavirus”; speculate about the possible impact of “[vaccine] hesitancy”; and theorize 

about changed “voter behavior” impacting voters willingness to vote in-person in the future. Doc. 

141 ¶¶15-20. Plaintiffs’ claims are especially implausible when considering that Texas experienced 

record voter turnout in the 2020 presidential election despite the pandemic.2 Plaintiffs also rely on 

legislation that has “yet to pass” in support of their claimed harm. Id. at ¶60. Such assertions do not 

support any injury to Plaintiffs that is actual or imminent. Further, Plaintiffs’ 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. Plaintiffs lack standing to complain of such speculative harm.

C. Plaintiffs’ claims regarding unspecified future “election policies” and pandemic 

conditions are not ripe. 

Plaintiffs claims are not ripe because they rely—in whole or in part—on future contingent 

events, namely the passage of unspecified but yet-to-be-enacted “election policies” as well as uncertain 

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

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

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 4 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 5

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)).

Plaintiffs’ claims are not fit for judicial decision and Plaintiffs 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, Plaintiffs cannot claim hardship in withholding court 

consideration when they do not identify any impending election in which voting in-person will cause 

concrete harm. Plaintiffs’ reliance on future contingent events makes their claims unripe. 

D. Sovereign immunity bars Plaintiffs’ vague injunction against “Election Conditions.”

Finally, to the extent plaintiffs rely on “election policies” apart from section 82.003—enacted 

or as yet unenacted—they are barred by sovereign immunity. Plaintiffs seek to enjoin undefined 

“Election Conditions”—a phrase Plaintiffs do not define but that appears to consist in part of policies 

and laws that have not yet been enacted. Plaintiffs do not plead facts to show that the Secretary has a 

role in enforcing the unspecified “Election Conditions.” Sovereign immunity bars their claims. 

“[T]he principle of state-sovereign immunity generally precludes actions against state officers 

in their official capacities, subject to an established exception: the Ex parte Young doctrine.” McCarthy 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 5 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 6

ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (citation omitted). Thus, Plaintiffs’ claims 

fail unless they fit that exception. Ex parte Young “rests on the premise—less delicately called a 

‘fiction’—that when a federal court commands a state official to do nothing more than refrain from 

violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to 

that precise situation . . . .” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (citation 

omitted).As a consequence, Ex parte Young applies only when the defendant has sufficient connection 

to the enforcement of the challenged statute. 

The Fifth Circuit held in this case that the Secretary has a sufficient connection to the 

enforcement of Section 82.003 to overcome sovereign immunity, but emphasized that “[d]etermining 

whether Ex parte Young applies to a state official requires a provision-by-provision analysis, i.e., the 

official must have the requisite connection to the enforcement of the particular statutory provision 

that is the subject of the litigation.” Abbott, 978 F.3d at 179. For example, the Fifth Circuit has recently 

held that Secretary lacks the requisite connection to the enforcement of certain statutory provisions 

relating to early voting protocols. See, Mi Familia Vota v. Abbott, 977 F.3d 461, 463–66 (5th Cir. 2020); 

Texas Democratic Party v. Hughs, No. 20-50683,---F3.d---, 2021 WL 1826760, at *3 (5th Cir. May 7, 

2021). Plaintiffs do not plead facts to show the Secretary’s requisite connection to the enforcement of 

the “election policies” and “Election Conditions” about which they complain. And Plaintiffs cannot 

plausibly claim the Secretary has an enforcement role regarding unspecified laws that have yet “to be 

enacted,” and that may never be enacted. Sovereign immunity bars any such claim against the 

Secretary.

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 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 6 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 7

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 Plaintiffs’ Twenty-Sixth 

Amendment Claim.

The Fifth Circuit has already held that Plaintiffs’ Twenty-Sixth Amendment “claim fails 

because conferring a benefit on another class of voters does not deny or abridge the plaintiffs’ TwentySixth 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’s claim must be dismissed. 

C. Plaintiffs’ claims of unconstitutional race discrimination fail.

Plaintiffs complain of race discrimination in violation of the Equal Protection Clause and the 

Fifteenth Amendment. Doc. 141 ¶83–86. Because they do not meet their burden of alleging plausible 

claims for relief, their claims should be dismissed. 

From the outset, Plaintiffs’ racial discrimination claims under the Equal Protection Clause and 

Fifteenth Amendment fail because the Plaintiffs do not plead facts to show intentional discrimination, 

a necessary component of those claims. See, Reno v. Bossier Parsish Sch. Bd., 528 U.S. 320, 481–82 (2000) 

(“whether under the Fourteenth or Fifteenth Amendment, [a plaintiff] has been required to establish 

that the State or political subdivision acted with discriminatory purpose.”); City of Mobile v. Bolden, 446 

U.S. 55, 62 (1980) (plurality opinion) (“Our decisions . . . have made clear that action by a State that 

is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 7 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 8

purpose.”); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of 

racially discriminatory intent or purpose is required to show a violation of the Equal Protection 

Clause.”). “Allegations [of discriminatory intent] that are merely conclusory, without reference to 

specific facts, will not suffice.” Priester v. Lowndes Cty., 354 F.3d 414, 424 (5th Cir. 2004). 

Because the Plaintiffs do not allege that Section 82.003 was passed with a racially 

discriminatory purpose, they have failed to state a claim for racial discrimination under the Fifteenth 

Amendment and Equal Protection Clause. Brown v. City of Shreveport, 158 F.3d 583 (per curiam) 

(unpublished) (affirming dismissal because Plaintiff had “not alleged sufficient facts to state a claim 

under the Fourteenth or Fifteenth Amendments that the City’s redistricting plan was enacted with the 

purpose of intentional discrimination against the black minority registered voters or that an actual 

discriminatory effect resulted.”). Nor would any such allegation of discriminatory purpose be 

plausible. When Texas extended absentee voting to voters 65 years of age or older, it was part of a 

significant revision of the Election Code passed after Texas (among other States) ratified the TwentySixth Amendment.3 One purpose of these revisions was “to bring the Texas Election Code into 

conformity with” with the Twenty-Sixth Amendment.4 The Legislature adopted this bill, which both 

lowered the voting age to 18 and allowed all voters over 65 to vote by mail, by an overwhelming 

majority.5 Plaintiffs cannot plausibly allege that the law was motivated by racial discrimination. 

Having failed to plausibly allege discriminatory purpose, the Court must analyze whether 

Plaintiffs have stated a claim for a violation of the Equal Protection Clause under the rational-basis 

standard for facially neutral statutes that do not involve a suspect classification or infringe a 

3 Tex. S. Con. Res. 65, 62d Leg., R.S., 1971 Tex. Gen. Laws 3867.

4 House Comm. On Elections, Bill Analysis, S.B. 1047, 64th Leg., R.S. (1975), 

https://lrl.texas.gov/LASDOCS/64R/SB1047/SB1047_64R.pdf#page=82.

5 H.J. of Tex., 64th Leg., R.S. 4204 (1975); S.J. of Tex. 64th Leg., R.S. (1975).

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 8 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 9

fundamental right. Miller v. Johnson, 515 U.S. 900, 913 (1995). As set forth below, infra pp.13–14, 

Plaintiffs fail to state a claim under that standard. 

Moreover, for the same reasons that the Fifth Circuit concluded that “no denial or abridgment 

of the right to vote under the Twenty-Sixth Amendment ever occurred,” Abbott, 978 F.3d at 194,

Section 82.003 does not constitute a denial or abridgement of the right to vote under the Fifteenth 

Amendment as a matter of law. The right to vote is not “abridged” unless the challenged law “creates 

a barrier to voting that makes it more difficult for the challenger to exercise her right to vote relative 

to the status quo, or unless the status quo itself is unconstitutional.” Id. at 192. In short, “a law that makes 

it easier for others to vote does not abridge any person’s right to vote.” Id. at 191. The Fifth Circuit’s 

interpretation of the operative language in the Twenty-Sixth Amendment conforms with the Supreme 

Court’s jurisprudence regarding the same operative language in the Fifteenth Amendment. 

The Supreme Court has refused to extend the protections of the Fifteenth Amendment to 

circumstances where, as here, the challenging party retains the ability to “register and vote without 

hinderance” because under such circumstances the plaintiff’s rights “have not been denied or abridged 

by anyone.” Bolden, 446 U.S. at 65; id. at 84, n.3 (Stevens, J., concurring in judgment) (characterizing 

the plurality opinion as concluding that “the Fifteenth Amendment applies only to practices that 

directly affect access to the ballot.”). Plaintiffs cannot plausibly argue that their access to the ballot is 

hindered by a law that makes it easier for others to vote. See, Buchanan v. City of Jackson, 708 F.2d 1066, 

1069 (6th Cir. 1983) (“absent any allegation of actual interference in the voting or registration 

processes, plaintiffs have failed to state a claim under the Fifteenth Amendment.”). This is of course 

why the Plaintiffs attempt to manufacture access restrictions from other sources, including from laws 

that are yet “to be enacted.” For the reasons already discussed, supra 3–7, the Court lacks jurisdiction 

over those claims. Plaintiffs’ Fifteen Amendment challenge to Section 82.003 must be dismissed 

because they allege no purposeful racial discrimination and no denial or abridgment of any right 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 9 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 10

protected by the Fifteenth Amendment. Finally, the mandate rule “forecloses relitigation” of whether 

Section 82.003 abridges the right to vote of anyone, because that issue was “expressly or impliedly 

decided by the appellate court.” U.S. v. Lee, 385 F.3d 315, 321 (5th Cir. 2004). 

D. Plaintiffs do not plead viable claims under Section 2 of the Voting Rights Act. 

Plaintiffs’ claim that Section 82.003 causes a discriminatory result under Section 2 must fail as 

a matter of law. Plaintiffs allege that “Texas’s age limitation for mail voting, on its own and as 

combined with the election policies enacted and soon to be enacted . . . violate Section 2 of the Voting 

Rights Act, 52 U.S.C. § 10301” as both a denial and abridgement of “the right to vote on account of 

race and language minority.” Doc. 141 ¶¶ 81–82. Not only does this vague and speculative claim lack 

fair notice or invoke the Court’s jurisdiction as explained supra, for the same reasons the claim must 

also fail as a matter of law for the purposes of stating a claim for which relief may be granted under 

Rule 12(b)(6). 

Plaintiffs 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). Plaintiffs 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, Plaintiffs must show that the challenged “standard, 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.

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 10 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 11

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 Plaintiffs base 

their Section 2 claims on speculation about the effect of laws that have yet to pass, 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 

Plaintiff’s claim under Section 2 because Section 82.003 does not deny or abridge the right to vote as 

a matter of law.

Even if Plaintiffs 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 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 11 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 12

choice enjoyed by other voters,” LULAC, Council No. 4434 v. Clements, 999 F.2d 831, 849 (5th Cir. 

1993) (en banc).

Plaintiffs 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, Plaintiffs appear to complain about several bills before the Legislature that 

have yet to pass. ECF 141 ¶¶ 51–62. In doing so, Plaintiffs 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 Plaintiffs 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).

For these reasons, the Court should dismiss Plaintiff’s claim under Section 2 of the Voting 

Rights Act. 

E. Section 82.003 easily passes the rational-basis review applicable to Plaintiffs’ 

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. Plaintiffs’ 

multifarious claims that Texas has abridged their “right to vote” fail because the right to vote is not at 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 12 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 13

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 Plaintiffs 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. 

Likewise, because their right to vote is not denied, and they may vote by other means, Plaintiffs 

suffered no denial of any right to free speech and free association in the election process. At heart, 

Plaintiffs claims are for age discrimination, and unlike race-based 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.” 

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 States6 without challenge for 45 years indicates that they are at least 

rational.

6 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. 

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 13 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 14

F. Alternatively, Plaintiffs’ 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, the 

Complaining Parties 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 Plaintiffs’ 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 

“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”).

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 14 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 15

Plaintiffs have failed to state a claim under the Anderson/Burdick framework because they do 

not credibly allege that in-person voting “on its own” 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 3–7, the Court lacks jurisdiction over such 

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

Plaintiffs’ Constitutional rights under the First and Fourteenth Amendments. Plaintiffs 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

/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

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 15 of 16
Defendant Ruth Hughs’ Motion to Dismiss Page 16

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

Case 5:20-cv-00438-FB Document 151 Filed 05/14/21 Page 16 of 16