IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

JENNIFER WHITE, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00746-O-BP

 § 

HEIDER GARCIA, TARRANT COUNTY §

ELECTIONS ADMINISTRATOR, et al., §

§ 

Defendants. §

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court are Plaintiff’s Response to Respondent’s Notice of Removal and Motion 

to Remand (ECF No. 4) and Defendants’ Motion to Dismiss and Brief in Support (ECF Nos. 5, 6), 

filed August 26, 2022; Defendants’ Response to Motion to Remand and Brief in Opposition (ECF 

Nos. 8, 9), filed September 1, 2022; Plaintiff’s Response to Defendants’ Motion to Dismiss (ECF 

No. 10), filed September 7, 2022; Petitioner’s Reply to Defendant’s Motion to Oppose Remand 

(ECF No. 11), filed September 7, 2022; and Defendants’ Reply Brief in Support of Motion to 

Dismiss (ECF No. 12), filed September 12, 2022. This case was automatically referred to the 

undersigned under Special Order 3 on August 25, 2022. ECF No. 2. After consideration of the 

pleadings and the applicable legal authorities, the undersigned RECOMMENDS that United 

States District Judge Reed O’Connor GRANT Plaintiff’s Motion to Remand IN PART and 

remand this case to the 348th Judicial District Court of Tarrant County, Texas. ECF No. 4. 

I. BACKGROUND

Jennifer White (“White”) filed an action in state court against Defendants asking the trial 

court to dismantle Texas’s electronic voting system and mandate hand-marked and hand-counted 

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voting. ECF No. 1-3 at 56. While White explicitly states that she is seeking redress only under 

Texas law, because of the number of references to federal law and the United States Constitution 

in White’s state court Petition, the Defendants assert that she seeks relief under federal law and 

thus chose to remove the case to this Court based on federal question jurisdiction. ECF No. 9 at 1. 

White now asks the Court to remand the case to the state court from whence it came. ECF No. 4. 

White asserts that Defendants violated the United States Constitution, federal laws, and 

state constitutional and statutory provisions in connection with recent elections before the 2022 

general election using computerized voting. ECF No. 1-3. She claims violations of various federal 

laws including 42 U.S.C. §§ 1985 and 1986; the Guarantee Clause of the United States 

Constitution; 28 U.S.C. §§ 1367 and 1943; and 52 U.S.C. §§ 20511(2)(a)(b) and 10101. Id. at 37, 

50-55. She claims that Defendants violated her procedural and substantive due process rights to 

vote and abridged her right to free speech. Id. 

She also seeks an injunction requiring “the preservation of records of the elections for 2020 

general, 2021 special, and 2022 primaries until such time that proper accounting of said elections 

are conducted.” Id. She requests “a Declaratory Order that the Respondents adhere to the 

constitutionally protected process of collecting and counting votes that ensures integrity and 

transparency” and asserts this would require “hand-marked paper ballots that can be cast with 

anonymity ... and hand-counted by residents of ... Texas, not machines.” Id. at 8. She also seeks 

preliminary and permanent injunctive relief restricting Defendants and their agents from 

implementing or enforcing the certification of all computerized voting systems and software not 

in compliance with the law. Id. at 58. 

White also seeks declarations that Defendants have violated the Texas Constitution’s Equal 

Protection Clause and Due Process Clause; that their approval of all computerized voting systems 

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is void, that the institution of their approval of such systems was arbitrary, capricious, and 

unlawful; and that Defendants’ actions in approving the systems violated the Constitution and state 

and federal laws. She also seeks orders that would unseal absentee ballots and related information 

from the 2020 general election to permit her to “review, examine, inspect, and duplicate such 

materials” and an order requiring Defendants “to terminate all employees, agents, and contractors 

shown to have had knowledge of or acquiesced in the improper acts described” in her Petition. Id.

at 57-58. 

Defendants respond that the Court does not have subject matter jurisdiction over the case 

because White lacks standing, and her claims raise an impermissible political question. ECF No. 

6 at 2-6. They further assert that even if the Court had subject matter jurisdiction, White’s Petition 

fails to state a claim upon which relief can be granted. Id. at 6. Specifically, they allege that there 

is no private right of action under 18 U.S.C. § 245 and 52 U.S.C. §§ 20511, no claim for violation 

of state law under 42 U.S.C. § 1983, and no valid claim for declaratory relief. Id. at 6-9.

II. LEGAL STANDARD 

A defendant’s right to remove a case from state to federal court is statutory. 28 U.S.C. § 

1441. However, not every case can be removed to federal court. The governing provision of the 

federal removal statute authorizes a defendant to remove “any civil action brought in a [s]tate 

court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 

1441(a). The Court must have subject matter jurisdiction over the case or controversy removed. 

See 28 U.S.C. § 1441(a); Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th 

Cir. 2002). The removing party bears the burden of showing that federal jurisdiction exists, and 

that removal was proper. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988). To 

determine whether jurisdiction is present for removal, the Court must consider the claims in the 

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state court petition as they existed at the time of removal. Cavallini v. State Farm Mut. Auto Ins. 

Co., 44 F.3d 256, 264 (5th Cir.1995).

However, “[i]f at any time before final judgment it appears that the district court lacks 

subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). When removal is 

defective for lack of subject matter jurisdiction, the district court must remand the action regardless 

of whether the parties have moved the court to do so. Wis. Dep't of Corrs. v. Schacht, 524 U.S. 

381, 392 (1998); see also Int'l Primate Protection League v. Adm'rs of the Tulane Educ. Fund, 500 

U.S. 72, 89 (1991) (holding that the literal words of § 1447(c) do not provide courts with discretion 

to dismiss, rather than remand, upon finding a lack of subject matter jurisdiction).

A defendant may remove a case to federal court if the complaint pleads a federal question. 

Under 28 U.S.C. § 1441(b), a defendant may remove to the federal courts “[a]ny civil action of 

which the district courts have original jurisdiction founded on a claim or right arising under the 

Constitution, treaties or laws of the United States.” The defendant bears the burden of 

demonstrating that a federal question exists. In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 

2007). A federal question exists “if there appears on the face of the complaint some substantial,

disputed question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 

1, 12 (1983). 

However, even if the complaint presents a federal question, the Court must still have 

subject matter jurisdiction over the case. See 28 U.S.C. § 1441(a). Subject matter jurisdiction does 

not exist in the absence of standing. The doctrine of standing provides definition to the Court’s

constitutional limits by “identify[ing] those disputes which are appropriately resolved through the 

judicial process.” Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015). Standing has both 

constitutional and prudential components. Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469,

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473 (citing Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)) (standing “contain[s] 

two strands: Article III standing ... and prudential standing”). To establish standing, a plaintiff 

must plead (1) an injury in fact, (2) that is fairly traceable to the defendant’s conduct, and (3) that 

a favorable federal court decision is likely to redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992). In a case removed from state court, the defendant has the burden of establishing 

the federal court’s jurisdiction, “including the elements of standing.” Morales v. Specialized Loan 

Servicing, LLC, No. SA-22-cv-00527-XR, 2022 WL 16549151, at *3 (W.D. Tex. Oct. 31, 2022)

(citing Lujan, 504 U.S. at 560).

III. ANALYSIS

For the Court to have subject matter jurisdiction over this case, White must have standing 

to bring her claim here. Under Lujan, White does not have standing to pursue her claims because 

she has not properly alleged an injury in fact. Therefore, Judge O’Connor should remand White’s 

cause of action to the state court for lack of subject matter jurisdiction. 

To establish an injury in fact, a plaintiff must show that she suffered an “invasion of a 

legally protected interest” that is both “concrete and particularized” as well as “actual or imminent, 

not conjectural or hypothetical.” Id. at 560. An injury is particularized if it affects the plaintiff in 

a personal and individual way. Id. For an injury to be concrete, it must be “de facto”; the injury 

must actually exist. Id. The injury in fact test requires that the party seeking relief be among those 

who are injured. Rivera v. Wyeth-Ayerst Labs., 283 F.3d 215, 219 (5th Cir. 2002) (quoting Sierra

Club v. Morton, 405 U.S. 727, 734-35 (1972). For a threatened injury to be “actual or imminent,” 

it must be “certainly impending” — “allegations of possible future injury are not sufficient.” 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). A generalized “interest in seeing that the 

law is obeyed” is not a concrete or particularized injury sufficient to confer standing in federal 

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court. Fed. Election Comm'n v. Akins, 524 U.S. 11, 24 (1998). And a plaintiff lacks standing if she 

asserts an abstract right that she shares in common with members of the public at large. Id.

When considering standing in voting rights cases, the Supreme Court and the Fifth Circuit 

have differentiated between cases that allege a violation of a law versus a violation of rights. See, 

e.g., League of United Latin American Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 430 (5th 

Cir. 2011); see also Baker v. Carr, 369 U.S. 186, 206 (1962). When a plaintiff complains about 

violation of a generalized voting law or procedure, but not of a violation of her constitutionally 

protected voting rights, the court has held that the injury suffered by the plaintiff is not a 

particularized injury. See Lance v. Coffman, 549 U.S. at 437, 441-442 (2007). A plaintiff lacks 

standing if she merely asks the Court to ensure that a voting law is obeyed. Id. at 441-42; See also 

Akins, 524 U.S. at 24. 

Therefore, when White asserts that Tarrant County officials violated state and federal laws 

by using electronic voting systems, without specifically alleging any violations of her 

constitutional right to vote (ECF No. 1-3 at 37, 50-56), she is asserting an abstract harm that is no 

different from claim that might be brought by any other voter in Tarrant County. Her allegation 

that Tarrant County needs to properly obey the voting laws of the State of Texas is not enough to 

create a concrete and particularized injury for the purposes of Article III standing. Lance, 549 U.S. 

at 441-42; Akins, 524 U.S. at 24.

Additionally, White only makes generalized claims that apply to all computerized voting 

systems, not just those used in Tarrant County. ECF No. 1-3 at 50-56. She does not state how the 

electronic system used in Tarrant County has affected her or caused her a specific injury and how 

that injury differs from what everyone in the county has experienced. Id. This type of general claim 

does not set her apart from any other Tarrant County voter and does not create a particularized 

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injury that establishes Article III standing. Lujan, 504 U.S. at 560

Likewise, to confer standing a claimed threatened injury must be imminent and not 

speculative. Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019). White’s Petition, though many 

pages long, contains the kind of generalized grievances that do not confer standing. She fails to 

allege any concrete injury or likely threatened injury that would permit the Court to consider her 

claim. 

Instead, White references numerous sources regarding the possibility of hacking and 

manipulation of voting machines. See ECF No. 1-3 at 6, 39. These possibilities are speculative at 

best. They are based on what might happen if Tarrant County’s electronic voting system 

malfunctioned or was compromised by hackers or other destructive parties and, therefore, do not 

amount to the “imminent” injury required to confer standing. Stringer, 942 F.3d at 720. Thus, even 

if her claims were concrete and particularized, White fails to plead an injury in fact that is an actual, 

imminent, non-speculative injury that the Court could address. See Clapper, 568 U.S. at 409. As 

a result, White lacks standing to bring her claims against Defendants in federal court. The Court 

thus lacks subject matter jurisdiction over White’s claims and must remand her case to state court.

Although they bear the burden of showing the Court’s jurisdiction over the removed case, 

including White’s standing to pursue her claims, Defendants instead seek dismissal under Federal 

Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. See ECF Nos. 5, 6, and 12. 

This contradictory approach supports remand of the case for lack of subject matter jurisdiction. As 

Judge Rodriguez noted in Morales, “courts in the Fifth Circuit have remanded cases to state court 

for failure to satisfy federal standing requirements.” 2022 WL 16549151, at *3 (citing Immigr.

Reform Coal. of Tex. v. Texas, 706 F. Supp. 2d 760, 765–65 (S.D. Tex. 2010)). Such a result is 

especially appropriate here where Defendants insist that White lacks standing to pursue her claims. 

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IV. CONCLUSION 

Because White lacks standing to bring this action in federal court, the Court does not have 

subject matter jurisdiction over her claims. Consequently, the undersigned RECOMMENDS that 

Judge O’Connor GRANT White’s Motion to Remand (ECF No. 4) IN PART to the limited extent 

that he should remand the case to the 348th Judicial District Court of Tarrant County, Texas 

pursuant to 28 U.S.C. § 1447(c). Because the Court lacks subject matter jurisdiction over the case, 

Judge O’Connor declines to grant any other relief requested by White or the Defendants.

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within fourteen days after being served 

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must 

identify the particular finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s findings, conclusions, and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

SIGNED on November 28, 2022.

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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