* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41573

WILLIE RAY; JAMILLAH JOHNSON; GLORIA MEEKS; REBECCA MINNEWEATHER; PARTHENIA MCDONALD; WALTER HINOJOSA; TEXAS DEMOCRATIC PARTY Plaintiffs-Appellees v. GREG ABBOTT, Attorney General of the State of Texas; PHIL WILSON, Secretary of State for the State of Texas Defendants-Appellants

Appeal from the United States District Court for the Eastern District of Texas USDC No. 2:06-CV-385
Before KING, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM: * At issue is a preliminary injunction against enforcement of§ 86.006(f) and (h) of the Texas Election Code, concerning the return of early-voting-by-mail ballots. VACATED and REMANDED. United States Court of Appeals Fifth Circuit 

### F I L E D January 9, 2008 Charles R. Fulbruge III ClerkNo. 06-41573

2 I. In September 2006, persons associated with the DemocraticParty and the Texas Democratic Party filed this action against the State of Texas and its Attorney General and Secretary of State, challenging several provisions of the Texas Election Code: §§ 64.036(a)(4), 84.004, 86.0051, and 86.006, as amended in 2003. These provisions establish several requirements for early voting-bymail. Plaintiffs maintain the purpose and effect of these provisions, and their application and enforcement by the State, unduly burden voting, free-speech, and associational rights in violation of the First, Fourteenth, and Fifteenth Amendments tothe United States Constitution, aswell as theVoting RightsAct (VRA). Plaintiffs also assert enactment and enforcement of the 2003 Amendments violate their constitutional rights of equal protection and due process of law. In October 2006, Plaintiffs moved for a preliminary injunction against enforcement ofthe challenged provisions “in advance ofthe 2006 election”. The State filed joint motions seeking dismissal for lack of subject-matter jurisdiction, improper venue, and failure to state a claim. A hearing was held on 30 October 2006, during which the scope of requested injunctive reliefwas narrowed by Plaintiffs to limit enforcement only of § 86.00

6 against persons who mail the ballot of another. Section 86.006 regulates the method for returning early-voting ballots and criminalizes, with
exceptions, the “knowing[] possess[ion of] an official ballot or official carrier envelope provided . . . to another”. T EX

. E LEC

. CODE A NN . § 86.006(f). The following day, the court preliminari ly enjoined enforcement of §§ 86.006(f) and (h) for “circumstances in which a person, other than the voter, has merely possessed the official ballot or official carrier envelope and such possession is with the actual consent of the voter”. The State appealed,No. 06-41573

1 The State also challenges whether Plaintiffs have standing to seek relief under 42 U.S.C. § 1971 (prohibiting denial ofvoting rights by state agents based on errors or omissions 3 simultaneously moving tostay the inj unction pending, and requesting expedited consideration of, the appeal. On 3 November 2006, our court stayed the injunction, but refused to expedite. Plaintiffs’ request to the Supreme Court to vacate the stay was denied the next day. Section 86.006was amended in May 2007, after the parties’ opening briefs
were filed. Although the State briefed the amendment in its reply, Plaintiffs did not seek leave to file a sur-reply regarding this development. For the first time at oral argument, in its rebuttal, the State proposed modifying the mail-in ballot and carrier envelope form. Accordingly, we required supplemental briefing on that issue. The State, both at oral argument and in its letter brief, asserted that the modified forms correct any deficiencies perceived by the district court. Plaintiffs, in their letter brief, contended that the 2007 amendment and the proposed modified forms do not constitute a sufficient constitutional remedy. II. The parties’ delay in proceeding to trial is regrettable. Neither the appeal from the preliminary injunction, nor our order staying it, stayed proceedings in district court. In sum, this litigation has been at a standstill. We are advised, however, that a status conference has been scheduled for early 2008. I n any event, the parties have brought to light new evidence not in the record on appeal and, therefore, not before the district court when it entered the injunction. In the light of the recent amendment to § 86.006, proposed changes to the forms, assurances by the State that the revised forms cure any constitutional problems, the State’s advising it will submit the changes to the ballot materials for preclearance under the VRA, and Plaintiffs’ contentions to the contrary, the district court should be allowed to reconsider its ruling. 1No. 06-41573

immaterial to voter qualification). In granting the preliminary injunction, the district court ruled purely on constitutional grounds, making our review of the § 1971 issue premature. Along that same line, the State challenges whether the district court should have dismissed certai n plaintiffs under the doctrine of H eck v. Humphrey, 512 U.S. 477 (1994) (requiring dismissal of 42 U.S.C. § 1983 complaint when, if successful, would necessarily imply the invalidity ofa plaintiff's conviction). Because this contention goes solely to the issue of venue, it is not inextricably intertwined with the merits of the district court's ruling. Therefore, a review of that issue is unnecessary to ensure meaningful review of the injunction. Swint v. Chambers County Comm'n, 514 U.S. 35, 50-51 (1995). 4 III. For the foregoing reasons, the preliminary injunction is VACATED, and this matter is REMANDED todistrict court for further proceedings. In the light ofthe November 2008elections, we are confident this action will be resolved well in advance of them. VACATED and REMANDED.