* Pursuant to 5TH CIR. 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 5TH CIR.

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:*

Atissue 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

Clerk
No. 06-41573

2

I.

In September 2006, persons associated with the Democratic Party 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 to the United States Constitution, as well as the Voting Rights Act

(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 of the challenged provisions “in advance of the 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 relief was narrowed by Plaintiffs to limit enforcement only

of § 86.006 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”. TEX. ELEC. CODE ANN. § 86.006(f). 

The following day, the court preliminarily 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 of voting rights by state agents based on errors or omissions

3

simultaneously moving to stay the injunction 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 86.006 was 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. 

In 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.1
No. 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

certain plaintiffs under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994) (requiring

dismissal of 42 U.S.C. § 1983 complaint when, if successful, would necessarily imply the

invalidity of a 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 to district court for further proceedings. In the light

ofthe November 2008 elections, we are confidentthis action will be resolved well

in advance of them. 

VACATED and REMANDED.