# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 40643

Texas Alliance for Retired Americans; Sylvia Bruni; DSCC; DCCC,
Plaintiffs

— Appellees ,

versus

Ruth Hughs , in her official capacity as the Texas Secretary of State,
Defendant

— Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:20

- CV

- 128

Before Clement, Elrod, and Haynes, Circuit Judges

. Per Curiam : Early voting in Texas begins on October 13. On September 25

— just eighteen days before early voting begins

— the district court enjoined enforcement of Texas House Bill 25 (HB 25) , which eliminates straight

- ticket voting. Applying the factors for ruling on a stay and observing the Supreme Court’s repeated emphasis that courts should not alter election rules on the United States Court of Appeals

Fifth Circuit 

### FILED September 30, 2020 Lyle W. Cayce Clerk Case: 20-40643 Document: 00515585161 Page: 1 Date Filed: 09/30/2020No. 20

- 40643

2 eve of an election , we STA Y the district court’s preliminary injunct ion pending appeal.

I. HB 25 was signed into law on June 1 , 2017, and its elimination o f straight

- ticket voting became effective on September 1, 2020. On March 5, 2020, P laintiffs Bruni, DSCC, DCC, along with the Texas Democratic Party (TDP ) and Jessica Tiedt, a candidate for the Texas State House of Representatives, filed their original lawsuit challenging HB 25 as unconstitutional and in violation of the Voting Rights Act. The district court dismissed the suit for lack of standing on June 24, 2020 , and Plaintiffs did not file an appeal

. Fifty days passed. Then, on August 12, 2020, Plaintiffs dropped Tiedt and TDP as parties, added the Texas Alliance for Retired Americans, and filed a new lawsuit alleging the same claims. Based on the
pa rties’ briefs, the district court entered its order enjoining enforcement of HB 25. The district court ordered the Texas Secretary of State (the Secretary) to implement the l aws that were in force before HB 25 was enacted in 2 017 in time for the upcoming election

. In granting the preliminary injunction, the district court held that the plaintiffs were likely to succeed on the merits for their claim that HB 25 places an undue burden on Texans’ right to vote and their right to associate under the First and F ourteenth Amendments to the United Sta t es Constitution. On September 28, 2020, the S ecretary filed an emergency motion for stay pending appeal.

II. A stay pending appeal “simply suspend[s] judicial alteration of the status quo,” so as to allow appellate courts to bring “considered judgment” Case: 20-40643 Document: 00515585161 Page: 2 Date Filed: 09/30/2020No. 20

- 40643

3 to the matter before them and “responsib l y fulfill their role in the judicial process.” Nken v. Holder , 556 U.S. 418, 427, 429 (2009 ) (internal quotation marks omitted). We consider four factors in deciding a motion to stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Veasey v. Perry , 769 F.3d 890, 892 ( 5th Cir. 2014) (quoting Nken , 556 U.S. a t 426 )

. “ The first two factors

. . . are the most critical.” Nken , 556 U.S. at
434. “The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones , 520 U.S. 681, 708 (1997).

III. The Supreme Court has “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat ’ l Comm. v. Democratic Nat ’ l Comm. , --- U

. S

. --- , 140 S. Ct. 1205, 1207 (2020 )

. Most recently, in Republican Nat iona l Comm ittee , the Court granted an application for stay of a district court’s preliminary injunction to the extent that it changed election rules five days before a n election because “ [b] y changing the election rules so close to the election date

. . . the District Court contravened this Court ’ s precedents and erred by ordering such relie f.” Id. Time and time again over the past several years, the Supreme Court has stayed lower court orders that change election rules on the eve of an election. See, e.g. , North Carolina v. League of Women Voters of N.C

. , 574 U.S. 927 (2014) (staying a lower court order that changed election laws thirty

- three days before the election); Husted v. Ohio State Conference of N.A.A.C.P. , 573 U.S. 988 (2014) (staying a lower court order that changed election laws sixty days before the election); Veasey v. Perry , 574 Case: 20-40643 Document: 00515585161 Page: 3 Date Filed: 09/30/2020No. 20

- 40643

4 U.S.

--- , 135 S. Ct. 9 (2014) (denying application to vacate Court of Appeals’ stay of district court injunction that changed election laws on eve of election) ; Pu rcell v. Gonzalez , 549 U.S. 1 (2006) (staying a lower court order changing election laws twenty

- nine days before the election)

. The principle from these cases is clear: court changes of election laws close in time to the election are strongly disfavored. Bearing this principle in mind, our court previously has stayed orders changing election laws when an election is imminent. See, e.g. , Tex

. Dem. Party v. Abbott , 961 F.3d 389, 411

– 12 ( 5th Cir. 2020); Veasey , 769 F.3d at 894. Today too , in staying a preli minary injunction that would change election laws eighteen days before early voting begins, we recognize the value of preserving the status quo in a voting case on the eve of an election, and we find that the traditional factors for granting a stay favor g ranting one here.

A. The Secretary’s arguments as to standing, 1 sovereign immunity , and the merits of Plaintiffs’ claims are harder to decide on our necessarily

1 Although this remains a question for the panel that decides the merits of the appeal , we have some concerns about whether Plaintiffs have standing . To establish Article III standing, plaintiffs must satisfy the well

- known requirements of Lujan v. Defende rs of Wildlife , 504 U.S. 555, 560 (1992) (requiring plaintiffs to demonstrate that they have suffered an “injury in fact ” that is “fairly traceable” to the defendant’s actions and will “likely . . . be redressed by a favorable decision.” ). Yet, the distri ct court’s analysis of standing rests on shaky factual and legal ground. First , the district court displays a fundamental misunderstanding of the way straight

- ticket voting work ed in Texas prior to HB 25 going into effect. Both the Plaintiffs’ expert and the district court seem to have mistakenly assumed that a one

- punch straight

- ticket voting option enabled voters to “mark a single bubble,” that eliminating that option would force voters “to make individual sel e ctions,” and that therefore, “the amount of time it will take to complete a ballot [without straight

- ticket voting] will increase.” As the Secretary argued in the district court and here on appeal, and as any Texan who voted in previous election s knows, this is not how straight

- ticket voting in Tex as worked . The straight

- ticket option still required in

- person voters to scroll through the Case: 20-40643 Document: 00515585161 Page: 4 Date Filed: 09/30/2020No. 20

- 40643

5 expedited review, but we need not reach them because the S ecretary has made a strong showing that she is likely to succeed on the merits of her appeal

on the argument that the district court improperly interfered with state election laws on the eve of an e lection. The Secretary argues that even if the district court had jurisdiction to issue its injunction, the injunction openly defies the Supreme Court’s instruction, discussed above, not to interfere with state election laws on the eve of an election.

I n its order, the district court contends that Republican National Committee is distinguishable. 140 S. Ct. at 1207. The district court reasons that its injunction “would be issued far earlier, would not extend any deadlines, and would not create the sort of confusion R epublican National Commission [sic] frowns up on .”

entire ballot, page by page, at the voting machine in order to cast their ballot . This gave voters the opportunity to confirm each of their individual choices or change the selection for any of the individual contests

. This fact presents a difficulty for Plaintiffs to establish redressability, an element of standing.
Second , the district court mistakenly applies the minimal showing of standing that

a plaintiff must show to overcome a motion to dismiss, rather than the “clear showing” of standing required to maintain a preliminary injunction. Barber v. Bryant , 860 F.3d 345, 352 (5th Cir. 2017) (citing Winter v. Nat

. Res. Def. Counc., Inc. , 555 U.S. 7, 22 (2008)). A merits panel w ill need to address standing before reaching the merits because standing is jurisdictional. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 93

– 94 (1998)

. But we do not need to decide the issue of standing here as a pre requisite to addressing the Secretary’s stay request, even if the district court lacked jurisdiction to issue the injunction for which A ppellants seek a stay. See, e.g. , I.N.S. v. Legalization Assist ance Pr o ject of L.A. Cty. Fed. of Labor , 510 U.S. 1301, 1305

– 06 (1993) (O’Connor, Circuit Justice, in chambers) (granting application to stay district court order pending final disposition by the Court of Appeals because the plaintiff likely lacked standing) ; El Paso Cty. v . Trump , No. 19

- 51144, slip op. at 2 ( 5th Cir. Jan. 8, 2020) (granting stay pending app e al of district court’s injunction for, among other reasons, the substantial likelihood that the appellees l acked Article III standing) ; see also Tex. Dem. Party v. Abbott , 961 F.3d 389, 399 (5th Cir. 2020) (discussing standing in the context of likelihood of success on the merits). Case: 20-40643 Document: 00515585161 Page: 5 Date Filed: 09/30/2020No. 20

- 40643

6 This reasoning is deeply flawed. First, eighteen days before early voting is not “far earlier” than five days before an election, especially considering that the Supreme Court has also staye d a lower court order that changed election laws sixty days ahead of an election. See League of Women Voters of N. C. , 574 U.S. at 927 . Seco nd, the district court’s analysis of the burden on election officials and likelihood of confusion relies on the mistaken premise that the “status quo” of Texas election law prior to its issuance of an injunction was straight

- ticket voting . The district co urt states expressly in its order that “Plaintiffs . . . raise a challenge seeking to maintain the status quo.” On this mistaken premise, the district court writes that “the requested injunction would not impose such an onerous burden on election official s and merely allows a century

- old practice to remain in place for one more election

. ” The district court repeats this mistake over and over, stating , for instance, that the injunction prevents “eliminating a practice that Texa n
vote r s have been accustomed to for 100 years” and enables “[a]dministering in

- person voting the same way it has been administered for almost 100
years

. . . .”

The district court ignore s the fact that in June 2017, a majority of the Texas legislature

— composed of officials elected by Texan voters to represent them

— passed a law that ended the long practice of straight

- ticket voting. That law became the new “status quo , ” and Plaintiffs had plenty of time over the past three years to challenge it. I t is the district court’s eleventh

- ho ur injunction that alters the status quo, not the Texas legislature’s 2017 duly enacted law

. The fact that the status quo of Texas election law just prior to the district court issued the injunction was to not allow straight

- ticket voting is demonstrated by the fact that Texas election officials, having had three years to adjust to HB 25 , printed and mailed thousands of ballots without a straight

- ticket voting option for the upcoming general election

. Case: 20-40643 Document: 00515585161 Page: 6 Date Filed: 09/30/2020No. 20

- 40643

7 Because of its mistaken premise, the district court minimizes the difficulty and confusion likely to result from Texas election officials having to implement a new ballot type. Even if, as Plaintiffs argue, the district court’s injunction does not apply to mail

- i n ballots, the Secretary describes the immense burden entailed in programming voting machines to process multiple ballot types, especially during an election

. As discussed above, “ the Supreme Court has instructed that we should carefully guard against jud icially al t ering the status quo on the eve of an election.” Veasey , 769 F.3d
at 895

. We find the Secretary has shown that she is likely to succeed on the merits that the district court erred in issuing an injunction that altered the status quo of Texas e lection law this close in time to an election . Thus, the first factor weighs in favor of issuing a stay

.

B. The Secretary has met the burden of showing irreparable injury absent a stay. Nken , 556 U.S. at 4 26

. “ W hen the State is seeking to stay a prel iminary injunction, it’s generally enough to say [that] a ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury. ” Valentine v. Collier , 956 F.3d 797, 803 (5th Cir. 2020) (quotation marks and brackets omitted) ; accord Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott , 734 F.3d 406, 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.”) . In June 2017, over three years ago, the Texas legislature passed HB 25. “ If the district court judgment is ultimately reversed, the State

cannot run the election over again , this time applying ” HB 25. Veasey , 769 F.3d at 896. “ [T]h e State has a significant interest in ensuring the proper and consistent running of its election machinery

. . . . ” Id

. The district court’s understanding of the nature of the injury that the injunction inflicts on Texas el ection officials, as discussed above, relies on a mistaken premise Case: 20-40643 Document: 00515585161 Page: 7 Date Filed: 09/30/2020No. 20

- 40643

8 that the status quo of election law in Texas is straight

- ticket voting. Given the actual reality, the State’s interest is severely hampered by the injunction.

C. Nor would any harm to Plai ntiffs outweigh the other three factors, especially considering the first two factors are the “most critical.” Nken , 556 U.S. at 434. We have already determined that the most critical factors favor granting a stay. See Planned Parenthood , 734. F.3d at 419 (“While we acknowledge that Planned Parenthood has also made a strong showing that their interests would be harmed by staying the injunction, given the State’s likely success on the merits, this is not enough, standing alone, to outweigh the other fact ors.” ).

D. Finally, given that thousands of ballots without straight

- ticket voting have already been mailed in accordance with a law that was passed three years
ago and the immense difficulty described by the Secretary of managing an election with different sets of ballots for in

- person and mail

- in voting , the public interest weighs heavily in favor of issuing the stay. When “the State is the appealing party, its in terest and [aforementioned] harm merge with that of the public. ” Veasey v. Abbott , 870 F.3d 387, 391 (5th Cir. 2017). The Texas Legislature passed HB 25 in 2017 , and state election officials have planned for this election accordingly. The state election machinery is already well in motion. A stay here, while the court can consider argument on the merits, will minimize confusion among both voters and trained election officials. Id.

* * * The Secretary’s motion to stay the district court’s preliminary i njunction pending appeal is GRANTED . The injunction, in all its particulars, is STAYED pending further order of this court. Case: 20-40643 Document: 00515585161 Page: 8 Date Filed: 09/30/2020