Mi Familia Vota v. Ogg

Case: 22-50732 Document: 198-1 Page: 1 Date Filed: 06/20/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 22-50732

FILED

June 20, 2024

____________

Lyle W. Cayce

Mi Familia Vota; Marla Lopez; Marlon Lopez; Paul Clerk

Rutledge,

Plaintiffs—Appellees,

versus

Kim Ogg,

Defendant—Appellant,

_____________

OCA-Greater Houston; League of Women Voters of

Texas; REVUP-Texas,

Plaintiffs—Appellees,

versus

Jose A. Esparza, In His Official Capacity as Texas Secretary of State

(Acting); Et al.,

Defendants,

Kim Ogg,

Appellant,

_____________

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LULAC Texas; Vote Latino; Texas Alliance for Retired

Americans; Texas AFT,

Plaintiffs—Appellees,

versus

Jose Esparza; Et al.,

Defendant,

Kim Ogg,

Appellant,

_____________

Delta Sigma Theta Sorority, Incorporated; Houston

Area Urban League; The Arc of Texas; Jeffrey Lamar

Clemmons,

Plaintiffs—Appellees,

versus

Gregory Wayne Abbott, In His Official Capacity as the Governor of

Texas; Et al.,

Defendants,

Kim Ogg,

Appellant,

_____________

Mi Familia Vota; Marla Lopez; Marlon Lopez; Paul

Rutledge,

Plaintiffs—Appellees,

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versus

Greg Abbott, In His Official Capacity as Governor of Texas; Et al.,

Defendants,

Kim Ogg,

Appellant.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC Nos. 1:21-CV-780, 1:21-CV-786,

5:21-CV-844, 5:21-CV-848, 5:21-CV-920

______________________________

Before Richman, Chief Judge, and Southwick, and Oldham, Circuit

Judges.

Leslie H. Southwick, Circuit Judge:

This is an interlocutory appeal from the district court’s denial of a mo-

tion to dismiss. The Plaintiffs are civil rights groups, voters, and an election

official. They seek to enjoin recent amendments to Texas’s election code,

alleging that those amendments violate the United States Constitution and

several federal statutes. The Defendant is the District Attorney for Harris

County who is sued in her official capacity. The district court denied the

District Attorney’s motion to dismiss, holding that she is not immune from

the Plaintiffs’ constitutional claims. The district court also found the Plain-

tiffs have standing to bring their claims against the District Attorney. We

hold that we have jurisdiction to hear this appeal and that the district court

should have dismissed the Plaintiffs’ constitutional claims as barred by sov-

ereign immunity. We do not reach the issue of standing. We REVERSE in

part, VACATE in part, and REMAND for further proceedings.

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No. 22-50732

FACTUAL AND PROCEDURAL BACKGROUND

On September 7, 2021, Texas Governor Greg Abbott signed into law

the Election Protection and Integrity Act of 2021. The enactment is generally

known by its Texas Senate bill number, “S.B. 1.” See Election Integrity

Protection Act of 2021, S.B. 1, 87th Leg., 2d Spec. Sess. (Tex. 2021). S.B. 1

modified various provisions of the Texas Election Code concerning voting,

early voting, voting by mail, and voter assistance. See id. S.B. 1 also modified

some existing elections-related criminal statutes and created several new

ones. See, e.g., Tex. Elec. Code § 33.051(g) (making it an offense for an

election officer intentionally or knowingly to refuse to accept a poll watcher

as required by law); § 276.015(b)–(d) (criminalizing “vote harvesting”).

Several advocacy groups and others filed lawsuits challenging S.B. 1’s

constitutionality. They alleged certain provisions violate federal statutes

including the Voting Rights Act of 1965 (“VRA”), the Americans with

Disabilities Act (“ADA”), and the Rehabilitation Act. These suits were

consolidated on September 30, 2021. The advocacy groups alleged S.B. 1’s

restrictions would impact their ability to advance their respective missions

and their members’ ability to vote and to assist others with voting.

The complaints originally named various state and county officials as

defendants, including Texas Attorney General Ken Paxton.

Section 273.021(a) of the Texas Election Code authorized the Attorney

General to enforce election-related criminal statutes, including those

established by S.B.1.

On December 15, 2021, the Texas Court of Criminal Appeals held that

Section 273.021 violated the separation of powers clause of the Texas

constitution and was therefore unconstitutional. State v. Stephens, 663

S.W.3d 45, 51–54 (Tex. Crim. App. 2021) (citing TEX. CONST. art. II, § 1).

The court concluded the Texas constitution “grants . . . authority to county

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and district attorneys” to “[r]epresent[] the state in a criminal prosecution

for election law violations,” and described this authority as “the specific duty

of county and district attorneys.” Id. at 52 (citing Tex. Const. art. V, §

21). It explained that “the Attorney General can prosecute with the

permission of the local prosecutor but cannot initiate prosecution

unilaterally.” Id. at 55.

Three Plaintiffs groups — the LULAC Plaintiffs, 1 MFV Plaintiffs,2

and OCA Plaintiffs 3 (collectively, “Plaintiffs”) — responded to Stephens by

amending their complaints to add several district attorneys as defendants,

including Kim Ogg, the Harris County District Attorney. The Plaintiffs

challenged several S.B. 1 provisions and alleged that Ogg is a proper

defendant for their claims under the First, Fourteenth, and Fifteenth

Amendments of the United States Constitution, Sections 2 and 208 of the

VRA, Title II of the ADA, and Section 504 of the Rehabilitation Act.

Ogg offered the Plaintiffs a “stipulation” or “non-participation

agreement” under which she would refrain from enforcing the challenged

criminal provisions “until such time as a final, non-appealable decision has

been issued in this matter.” The Plaintiffs rejected the stipulation, arguing

on appeal that the “limited offer did not bind Ogg to any final ruling on the

merits; require her to produce discovery in the case; or impact her statutory

duty to aid the Attorney General when called upon to help investigate

_____________________

1

This group includes LULAC Texas, Voto Latino, Texas Alliance for Retired

Americans, and Texas AFT.

2

This group includes Mi Familia Vota, Houston Justice, Houston Area Urban

League, Delta Sigma Theta Sorority, Inc., The Arc of Texas, Marla Lopez, Marlon Lopez,

Paul Rutledge, and Jeffrey Lamar Clemmons.

3

This group includes OCA-Greater Houston, League of Women Voters of Texas,

REVUP-Texas, Texas Organizing Project, and Workers Defense Action Fund.

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election infractions.” The Plaintiffs also complain the stipulation did not

“rule out her granting permission to Attorney General Paxton to bring

prosecutions under S.B. 1 within her jurisdiction.”

Ogg moved to dismiss all claims brought against her under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion included

assertions of sovereign immunity and a lack of standing. The district court

granted the motion in part and denied it in part. 4 The court allowed the

Plaintiffs to proceed against Ogg with challenges to the criminal provisions of

S.B. 1 but dismissed claims that sought to challenge election code provisions

that impose only civil penalties. 5 The court held sovereign immunity did not

bar the Plaintiffs’ claims under the exception carved out in Ex parte Young,

209 U.S. 123 (1908). The district court likewise held the Plaintiffs had

standing to assert their claims against Ogg.

Ogg filed a notice of appeal. She also moved to stay discovery and

further proceedings against her. The district court denied the motion to stay.

Ogg then sought a stay in this court. In an unpublished order, a panel of this

court denied Ogg’s motion on October 7, 2022. The panel held that Ogg

failed to justify a stay because she had “no likelihood of succeeding on the

merits” on her sovereign immunity defense to the Plaintiffs’ VRA claims

“because the VRA explicitly abrogated sovereign immunity.” The panel

_____________________

4

In separate orders, the district court also granted in part and denied in part the

motion to dismiss filed by the State of Texas, the Governor, the Secretary of State, and the

Attorney General. Appeals from those orders were consolidated under case number 22-

50775. The appeal before us relates only to the district court’s order denying Ogg’s motion.

5

Specifically, the district court allowed the Plaintiffs’ claims to proceed with

respect to Sections 4.06, 4.09, 6.04, 6.05, 6.06, 7.02, and 7.04 of S.B. 1, which extend to

Sections 276.015, 276.016, 276.017, and 276.018 of the election code. All these provisions

“create or implicate one or more criminal offenses” or “contemplate criminal offenses”

under the election code. Our decision is limited to these provisions.

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No. 22-50732

further “decline[d] Ogg’s invitation to prematurely review [her] pleading

and standing arguments at the motions stage of an interlocutory appeal

concerning a wholly separate sovereign immunity issue.”

DISCUSSION

There are three issues presented in this interlocutory appeal:

(1) whether we have jurisdiction under the collateral order doctrine to review

the district court’s denial of sovereign immunity as it relates to some, but not

all, of the Plaintiffs’ claims; (2) whether the district court erred in denying

Ogg’s motion to dismiss the Plaintiffs’ constitutional claims based on

sovereign immunity and the Eleventh Amendment; and (3) whether the

Plaintiffs have standing to assert their statutory claims. Because of our

resolution of the first two issues, we need not reach the third.

We will start our analysis with examining our jurisdiction over the ap-

peal. Because we find there is jurisdiction, we then apply de novo review to

the district court’s dismissal under Rule 12(b)(1) for a lack of jurisdiction in

that court. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). In doing

so, “we take the well-pled factual allegations of the complaint as true and

view them in the light most favorable to the plaintiff.” Id. “The burden of

proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction.”

Greiner v. United States, 900 F.3d 700, 703 (5th Cir. 2018) (citation omitted).

I. Appellate jurisdiction to review the denial of sovereign immunity

Federal appellate jurisdiction is generally limited to review of “final

decisions of the district courts of the United States.” 28 U.S.C. § 1291. This

appeal is not from a final decision but from an order that rejected a sovereign-

immunity bar to the Plaintiffs’ constitutional claims against Ogg. Ogg in-

vokes the collateral order doctrine on appeal as a basis for our jurisdiction.

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We must first conclude we have jurisdiction before considering the

merits of this appeal. BancPass, Inc. v. Highway Toll Admin., LLC, 863 F.3d

391, 397 (5th Cir. 2017). Under the collateral order doctrine, we may hear

“interlocutory appeals from a small category of decisions that, although they

do not end the litigation, must nonetheless be considered final.” Id. (citation

omitted). This narrow doctrine applies only to decisions that (1) are not

“tentative, informal or incomplete,” (2) “deal[] with ‘claims of right separa-

ble from, and collateral to, rights asserted in the action,’” (3) are “effectively

unreviewable on the appeal from final judgment,” and (4) are “too important

to be denied review.” Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 490–

91 (5th Cir. 2001) (emphasis in original) (quoting Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949)). These requirements are demanding.

See In re Deepwater Horizon, 793 F.3d 479, 484 (5th Cir. 2015).

The Plaintiffs argue we lack jurisdiction because Ogg’s sovereign im-

munity defense, at most, could apply only to the Plaintiffs’ constitutional

claims. The Plaintiffs brought statutory claims under the VRA, Section 504

of the Rehabilitation Act, and Title II of the ADA, all of which allegedly waive

sovereign immunity. We agree that at least the VRA includes a waiver of

sovereign immunity, as precedent of this court has so held. 6 The Plaintiffs

contend jurisdiction over an interlocutory appeal exists only when immunity

from an entire suit exists, not from specific claims, citing Puerto Rico Aqueduct

& Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), and Planned

Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442 (5th Cir. 2022). The

Plaintiffs argue the “piecemeal nature of Ogg’s immunity defense undercuts

any basis for collateral order review.” We examine this interpretation.

_____________________

6

This court held that Congress enacted the VRA under “its Fifteenth Amendment

enforcement power, [thereby] validly abrogating state sovereign immunity.” OCA-Greater

Hous. v. Texas, 867 F.3d 604, 614 (5th Cir. 2017).

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A. Review of the factors governing interlocutory appeals

We start our review by discussing what the collateral order doctrine

demands. Understanding why a denial of sovereign immunity from an entire

suit is reviewable on interlocutory appeal can help us evaluate appeals from

less-than-complete immunity decisions.

We earlier enumerated the factors that govern our decision. The first

is satisfied, as an order denying sovereign immunity is not tentative. It marks

the point at which a court informs the State it must defend itself. See Metcalf

& Eddy, 506 U.S. at 145. Even if the denial is of immunity from only one

claim, there still is a definitive ruling. See Texas v. Caremark, Inc., 584 F.3d

655, 658 (5th Cir. 2009).

The second factor is also met, as sovereign immunity is a separate is-

sue from the merits of a case. Evaluating whether there is immunity from

suit or a claim in no manner determines the merits of asserted claims, only

whether they are assertable. See Metcalf & Eddy, 506 U.S. at 145.

As to the third, a denial of an assertion of sovereign immunity that

applies to an entire suit is reviewable on appeal after a final judgment, but the

effectiveness of that review to protect the State’s interest is minimal because

a substantial part of the benefit of immunity has been lost. The denial of im-

munity from some but not all claims potentially imposes on the State an er-

roneously broad obligation of defense that must be endured before the error

is corrected on appeal. See Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S.

247, 258 (2011). Jurisdictional issues like the immunity the Eleventh Amend-

ment represents “are founded in concern about the proper — and properly

limited — role of the courts in a democratic society.” Roark & Hardee LP v.

City of Austin, 522 F.3d 533, 541–42 (5th Cir. 2008) (quotation marks and

citation omitted). A federal court exercising jurisdiction over a claim to

which a State is immune, even if other, non-immune claims exist, at least

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increases the coercive process exercised by the federal court. Cf. Lee v. An-

thony Lawrence Collection, LLC, 47 F.4th 262, 267–68 (5th Cir. 2022).

The fourth and final factor, namely, the State’s interest in immunity

from suit, is a significant interest justifying an interlocutory appeal. See

Metcalf & Eddy, 506 U.S. at 146. Whether the State’s interest in possible

immunity from only some claims but not others is significant enough to jus-

tify review under the collateral order doctrine is an issue we will consider

later in the opinion.

Thus, the general considerations for allowing interlocutory appeals

give meaningful support to allowing an appeal from the denial of sovereign

immunity over some but not all claims. We now examine caselaw to see if

there are comparable appeals that have been allowed.

B. Relevant caselaw

In one precedent on which the Plaintiffs rely, the Supreme Court held

that an interlocutory order denying a state agency’s claim of immunity from

suit could be appealed as a collateral order. Metcalf & Eddy, 506 U.S. at 141.

The Court reasoned the Eleventh Amendment “effectively confers an im-

munity from suit” such that, “[a]bsent waiver, neither a State nor agencies

acting under its control may be subject to suit in federal court.” Id. at 144

(quotation marks and citation omitted). Therefore, when district courts re-

ject States’ or state entities’ claims to immunity signified by the Eleventh

Amendment, those rulings are “conclusive determinations that they have no

right not to be sued in federal court.” Id. at 145. For that reason, immediate

appeal under the collateral order doctrine is permitted. Id. at 147. It is true

that the Court referred to whether a state governmental entity is “subject to

suit in federal court.” Id. at 144 (emphasis added). Nonetheless, the issue of

appealability of denials of claims to immunity only from some claims did not

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exist in that case. We must look further to determine whether we have juris-

diction over this appeal.

In another precedent, two Planned Parenthood entities and three in-

dividuals sued the Louisiana Department of Health, alleging the Department

unlawfully declined to act on a license application to provide abortion ser-

vices. Planned Parenthood Gulf Coast, 24 F.4th at 445. There were two

claims: one regarding the Department’s failure to act on the application and

another regarding a Louisiana state law that prohibited “giving taxpayer

funds, including Medicaid funds, to abortion providers.” Id. at 446–47. The

district court denied the motions to dismiss based on sovereign immunity.

Id. at 447–48.

In this court, the Department insisted “it has always asserted ‘im-

munity from suit,’” responding to the plaintiffs’ argument that in district

court, it had asserted more limited immunity. Id. at 448–49. It is in this con-

text that we held there was collateral order jurisdiction “because the Depart-

ment asserted sovereign immunity from this entire lawsuit.” Id. at 450. We

held that a State does not need to assert sovereign immunity independently

over each claim. Id. at 450. The “jurisdictional inquiry is not overly tech-

nical” and we ask only whether “the state assert[s] sovereign immunity from

suit.” Id. at 449. Therefore, our analysis in that opinion could pretermit

considering any issue of jurisdiction if the State had actually asserted less

than complete immunity. Concluding that complete immunity had been

claimed, we had no reason to address whether collateral order jurisdiction

also existed when sovereign immunity is asserted for fewer than all claims.

There is some language in the opinion suggesting we should not ac-

cept the current appeal. For example, we referred to one of our precedents

as characterizing that “a proper invocation of sovereign immunity will be

from the ‘entire suit.’” Id. (quoting McCarthy ex rel. Travis v. Hawkins, 381

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F.3d 407, 411 (5th Cir. 2004)). In McCarthy, though (as in Planned

Parenthood), the defendants had asserted sovereign immunity from the entire

suit. See McCarthy, 381 F.3d at 411. Thus, in neither case did this court need

to decide the right to appeal from the denial of immunity asserted on fewer

than all claims.

Further, there is some suggestion in Planned Parenthood that a State

does not need to insist on immunity from all claims before the collateral order

doctrine will apply. The court stated that “[t]his is not the first time that we

have exercised jurisdiction over an interlocutory appeal where the state as-

serted absolute immunity from only some, and not all, of a plaintiff’s claims

in the district court.” Planned Parenthood Gulf Coast, 24 F.4th at 450 n.13.

The court then described BancPass as the relevant precedent. Id. That case

arose “out of litigation between rival companies that specialize in highway

toll collection technology.” BancPass, 863 F.3d at 394. One of those private

companies asserted absolute immunity from a defamation claim because the

allegedly defamatory communications were absolutely privileged as part of

judicial proceedings under Texas law. Id. at 396. It did not assert any im-

munity from the plaintiff’s other claim of tortious interference with contract.

Id. at 397–98. We allowed an interlocutory appeal even though it was only

from the ruling on the defamation claim. Id. at 398.

We conclude that Planned Parenthood made no clear holding about the

need for complete immunity before the collateral order doctrine could be in-

voked for an appeal. Whatever that opinion or McCarthy did hold on the issue

would at most be dicta because that was not the issue those courts faced.

We next examine opinions from other circuits cited by the parties. In

a Ninth Circuit case, the State of Hawaii appealed the district court’s denial

of its motion for partial summary judgment, claiming the Eleventh Amend-

ment shielded it from exposure to punitive damages under Title II of the

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ADA and Section 504 of the Rehabilitation Act. Burns-Vidlak ex rel. Burns v.

Chandler, 165 F.3d 1257, 1258–59 (9th Cir. 1999). The court held it did not

have collateral order jurisdiction because, unlike in Metcalf & Eddy, “the

State [wa]s not claiming sovereign immunity from suit.” Id. at 1260. Instead,

Hawaii acknowledged it was subject to suit in federal court on some claims

but sought a ruling that punitive damages were not recoverable. Id. “The

foundation for the interlocutory appeal authorized by [Metcalf & Eddy] is the

existence of a right not to be a litigant . . . . Once the [state] defendants con-

cede that the litigation is proper, they undermine any claim of entitlement to

an interlocutory appeal.” Id. at 1261 (alterations in original) (quoting Mercer

v. Magnant, 40 F.3d 893, 896–97 (7th Cir. 1994)). The quoted Seventh Cir-

cuit opinion also denied the right to bring an interlocutory appeal when the

claim was not immunity from suit, but only immunity from one form of relief

— damages. Mercer, 40 F.3d at 897.

Hawaii’s interlocutory appeal brought a far narrower issue than is

made here, arguing only that a particular form of relief was unavailable even

though the claims themselves were properly brought. Here, the argument is

that the constitutional claims, and necessarily any form of relief for those

claims, are barred by sovereign immunity. We see that as a valid distinction,

but we also acknowledge the Ninth Circuit’s language emphasizes the need

to seek enforcement of “a right not to be a litigant.” Burns-Vidlak, 165 F.3d

at 1261 (quoting Mercer, 40 F.3d at 896). This opinion is certainly helpful to

the Plaintiffs but is not binding on us.

We interpret the analysis in a First Circuit opinion as being analogous

to that in the Ninth Circuit opinion we just discussed. See Espinal-Dominguez

v. Com. of Puerto Rico, 352 F.3d 490 (1st Cir. 2003). There, the plaintiff sued

Puerto Rico under Title VII for discrimination, seeking monetary compensa-

tion. Id. at 493; 42 U.S.C. §§ 2000e to 2000e–17. The defendant argued that

the Eleventh Amendment barred damages but conceded it was subject to suit

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for the underlying claims because Title VII constituted a valid abrogation of

state sovereign immunity. Espinal-Dominguez, 352 F.3d at 493–94. The First

Circuit held “[t]his concession . . . opened the Eleventh Amendment portal

at least part-way” and divested the court of appellate jurisdiction over the

interlocutory appeal. Id. at 494, 499. The First Circuit also noted the “foun-

dation for the interlocutory appeal authorized by [Metcalf & Eddy] is the ex-

istence of the right not to be a litigant,” and recognized that appellate juris-

diction in this circumstance “would require an extension of the holding an-

nounced” in that case. Id. at 496–97 (citation omitted).

None of this caselaw addressed as a relevant issue whether a State de-

fendant who did not assert sovereign immunity from all claims could appeal

from a denial of that partial immunity. We consider it necessary, then, to look

beyond authority that discusses only the Eleventh Amendment. We do so

now.

C. Appeals from denial of other forms of immunity

In addition to permitting interlocutory appeals under the collateral or-

der doctrine from denials of sovereign immunity, the Supreme Court has al-

lowed interlocutory appeals of orders rejecting absolute immunity, Nixon v.

Fitzgerald, 457 U.S. 731, 742 (1982); qualified immunity, Mitchell v. Forsyth,

472 U.S. 511, 530 (1985); and a defense of double jeopardy for criminal de-

fendants, Abney v. United States, 431 U.S. 651, 660 (1977). Qualified immun-

ity is the only category of immunity for which the Court has addressed

whether an appeal may be taken from its denial even when other claims will

not be affected. See Behrens v. Pelletier, 516 U.S. 299 (1996). That immunity

is available only to individuals, not to the State, but we consider the Court’s

analysis to be relevant.

The Court considered the argument that denial of qualified immunity

should not be appealable immediately because “the defendant will be

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required to endure discovery and trial on matters separate from the claims

against which immunity was asserted.” Id. at 311. The Court explained that

in the context of qualified immunity, the “right to immunity is a right to im-

munity from certain claims, not from litigation in general; when immunity with

respect to those claims has been finally denied, appeal must be available, and

cannot be foreclosed by the mere addition of other claims to the suit.” Id. at

312 (emphasis in original).

This court also has found collateral order jurisdiction in appeals from

denials of qualified immunity that had been asserted over only some claims.

See, e.g., Waller v. Hanlon, 922 F.3d 590, 598 (5th Cir. 2019). At other times,

the application of qualified immunity will constitute “immunity from suit”

that “is effectively lost if a case is erroneously permitted to go to trial.” Pear-

son v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted).

In Behrens as to qualified immunity, the Supreme Court made its only

clear recognition of a right to appeal the denial of an immunity when asserted

as to fewer than all claims. Even so, across the range of immunities, the Su-

preme Court has “stressed the importance of resolving immunity questions

at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,

227 (1991). That has been expressed when addressing qualified immunity

claims, Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021), and sover-

eign immunity claims, In re Paxton, 60 F.4th 252, 257 (5th Cir. 2023). Fur-

ther, a purpose of both sovereign immunity and qualified immunity is to pro-

tect defendants from the burden, expense, and disruption of litigation. See

Metcalf & Eddy, 506 U.S. at 146 & n.5; Behrens, 516 U.S. at 308. Protecting

defendants from some of the expenses and burdens, even if not all, has merit.

D. The costs and consequences of litigation

Ogg contends the denial of sovereign immunity here would have con-

sequences “in terms of real costs and litigation burdens on state officials, not

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to mention courts,” where, as here, “some plaintiffs have sought expansive

discovery from . . . [her] and her office.” She highlights the district court’s

“willingness to permit such expansive discovery” and argues this would

“force local prosecutors to redirect resources.” The Plaintiffs respond that,

because Ogg may be subject to the costs and consequences of litigation

through the Plaintiffs’ statutory claims, her claims to sovereign immunity are

undermined and we therefore lack jurisdiction.

Although both parties correctly highlight the costs and consequences

of litigation when considering whether sovereign immunity applies, the Elev-

enth Amendment’s purpose is not solely or even primarily fiscal. “The very

object and purpose of the [E]leventh [A]mendment were to prevent the in-

dignity of subjecting a [S]tate to the coercive process of judicial tribunals at

the instance of private parties.” Ex parte Ayers, 123 U.S. 443, 505 (1887).

Thus, burdens and expenses of litigation are a consideration, but the “ulti-

mate justification” for the Eleventh Amendment “is the importance of en-

suring that the States’ dignitary interests can be fully vindicated.” Metcalf &

Eddy, 506 U.S. at 146.

For this reason, the Supreme Court rejected the First Circuit’s at-

tempt to distinguish sovereign immunity from qualified immunity under the

collateral order doctrine “on the grounds that the States, as compared to in-

dividual officials, are better able to bear the burden of litigation.” Id. at 146

n.5. The Court reasoned that “[t]he Eleventh Amendment is concerned not

only with the States’ ability to withstand suit, but with their privilege not to

be sued.” Id. Likewise, the continued expenses Ogg might face on Plaintiffs’

statutory claims is not the primary focus of the Eleventh Amendment. It is

her privilege not to be sued over claims from which she is immune.

The Supreme Court has “repeatedly stressed” that the collateral or-

der doctrine is a “‘narrow’ exception” that should “never be allowed to

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swallow the general rule that a party is entitled to a single appeal.” Digital

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). The Supreme

Court has also “stressed the importance of resolving immunity questions at

the earliest possible stage in litigation.” Hunter, 502 U.S. at 227. We must

balance these important directions.

We conclude that recognizing jurisdiction in this case under the col-

lateral order doctrine is appropriate. Even though Ogg argues for the protec-

tions that arise from the Eleventh Amendment only as to part of the lawsuit,

we have jurisdiction to rule on those arguments.

II. Sovereign immunity over the Plaintiffs’ constitutional claims

We now examine the merits of Ogg’s sovereign immunity defense to

the Plaintiffs’ constitutional claims.

“Generally, state sovereign immunity precludes suits against state of-

ficials in their official capacities.” Texas Democratic Party v. Abbott, 961 F.3d

389, 400 (5th Cir. 2020) (“Texas Democratic Party I”). The legal fiction of

Ex parte Young, however, provides an “exception to Eleventh Amendment

sovereign immunity” in the subset of cases to which it applies. City of Austin

v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). The exception permits federal

courts to enjoin prospective unconstitutional conduct by “individuals who,

as officers of the state, are clothed with some duty in regard to the enforce-

ment of the laws of the state, and who threaten and are about to commence

proceedings, either of a civil or criminal nature.” Ex parte Young, 209 U.S.

at 155–56.

The Ex parte Young exception has three requirements: “(1) A plaintiff

must name individual state officials as defendants in their official capacities;

(2) the plaintiff must allege an ongoing violation of federal law; and (3) the

relief sought must be properly characterized as prospective.” Green Valley

Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471 (5th Cir. 2020) (en banc)

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(quotation marks and citations omitted). Ogg does not dispute that the Plain-

tiffs meet these general requirements. Instead, the parties dispute whether

Ogg is the correct defendant.

To be a proper defendant under Ex parte Young, a state official “must

have some connection with the enforcement of” the law being challenged.

Ex parte Young, 209 U.S. at 157. We once expressed that “[o]ur decisions are

not a model of clarity on what constitutes a sufficient connection to enforce-

ment.” Texas Democratic Party I, 961 F.3d at 400 n.21 (quotation marks and

citation omitted). Still, there are “guideposts” to aid the decision. Texas All.

for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th Cir. 2022). They are: (1) the

state official has “more than the general duty to see that the laws of the state

are implemented,” i.e., a “particular duty to enforce the statute in question”;

(2) the state official has “a demonstrated willingness to exercise that duty”;

and (3) the state official, through her conduct, “compel[s] or constrain[s per-

sons] to obey the challenged law.” Id. (quotation marks and citation omit-

ted). 7

We will assess each guidepost.

A. Ogg’s duty to enforce the challenged provisions

A state official may be “specially charged with the duty to enforce [a]

statute.” Ex parte Young, 209 U.S. at 158. “Where a state actor or agency is

statutorily tasked with enforcing the challenged law and a different official is

the named defendant, our Young analysis ends.” City of Austin, 943 F.3d at

_____________________

7

Our Texas Alliance opinion expressed this formulation somewhat differently by

placing the “particular duty” requirement as part of the second “guidepost” alongside the

“demonstrated willingness” requirement. Texas All., 28 F.4th at 672. That reordering is

not legally significant. See id. at 672–74. Instead, we consider the duties requirements

together by first assessing Ogg’s enforcement duty and then analyzing her demonstrated

willingness to exercise that duty. See City of Austin, 943 F.3d at 999–1000.

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998. The statutory text does not need to “state the official’s duty to enforce

it, although such a statement may make that duty clearer.” Id. at 997–98. “A

general duty to enforce the law is insufficient.” Texas Democratic Party v.

Abbott, 978 F.3d 168, 181 (5th Cir. 2020) (“Texas Democratic Party II”).

We earlier mentioned the Texas Court of Criminal Appeals’ 2021 de-

cision that discussed the enforcement of S.B. 1. Stephens, 663 S.W.3d 45.

The court held that Texas Election Code Section 273.021, which gave the

Attorney General independent authority to bring criminal prosecutions, vio-

lated the state constitution’s separation of powers. Id. at 51–57. The court

explained that the Texas constitution gives county and district attorneys the

“specific duty” to represent the state in criminal prosecutions. Id. at 52. The

Attorney General, as part of the state’s executive branch, has no similar, in-

dependent power under the state constitution. Id. at 55–56. It was therefore

a violation of separation of powers for the legislature to delegate such prose-

cutorial power to the Attorney General. Id. at 55–57. 8

The district court read Stephens as holding that “only local district at-

torneys have independent authority to prosecute criminal offenses under the

Election Code.” Because the Texas Election Code specifically contemplates

the district attorneys’ involvement in criminal prosecutions of code viola-

tions, “[t]ogether, the language of the Election Code and Stephens confirm

that county and district attorneys have authority to compel or constrain a per-

son’s ability to violate” the challenged S.B. 1 provisions.

Ogg agrees that she has authority to enforce the relevant provisions of

law that the Plaintiffs challenge. She argues she has no duty to bring any

_____________________

8

The pronouncements of the Texas Court of Criminal Appeals on state criminal

law are authoritative in this court, equal to the respect we give holdings by the Supreme

Court of Texas on civil law. See Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002).

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prosecutions; instead, she has “complete discretion” over whether to bring

criminal charges, which is distinct from the “specific duty” required for Ex

parte Young to apply. As support, she cites Texas Code of Criminal Proce-

dure Article 2.01, which states that “[i]t shall be the primary duty of all pros-

ecuting attorneys, including any special prosecutors, not to convict, but to

see that justice is done.” Ogg is correct that mere authority is not enough.

See Texas Democratic Party II, 978 F.3d at 181.

The Plaintiffs argue Ogg does, in fact, have a “specific duty” to en-

force the Texas Election Code. They rely on Stephens, which characterized

the exclusive authority of district attorneys to bring criminal prosecutions as

a “specific duty.” Stephens, 663 S.W.3d at 52. Examining that section of

Stephens, we see that the court was distinguishing the Attorney General from

local prosecutors. Id. The court held there was no “specific grant of author-

ity” in the Texas constitution to the Attorney General for “the prosecution

of criminal proceedings,” as the “[c]onstitution already grants this authority

to county and district attorneys. See Tex. Const. art. V, § 21. Because this

is already the specific duty of county and district attorneys,” it was not a spe-

cific duty of the Attorney General. Id.

When the Court of Criminal Appeals referred to local prosecution of

crime as the “specific duty” of officials like Ogg, it was not using that phrase

in the same sense as our Ex parte Young precedent. Our analysis under Ex

parte Young is essentially the reverse. That is, our analysis is “‘provision-by-

provision’: The officer must enforce ‘the particular statutory provision that

is the subject of the litigation.’” Texas All., 28 F.4th at 672 (quoting Texas

Democratic Party II, 978 F.3d at 179). Reading Stephens’s “specific duty” lan-

guage as satisfying Ex parte Young’s connection requirement would make dis-

trict attorneys the proper defendants in challenges to all criminal statutes cat-

egorically. Our precedent demands more from a state statute.

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Discretionary authority to act, on its own, is insufficient to give rise to

a particular duty to act, i.e., a “sufficient connection [to] enforcement.” City

of Austin, 943 F.3d at 998 (alteration in original) (quoting Ex parte Young, 209

U.S. at 157). The Plaintiffs counter that the Supreme Court’s decision in

Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021), dictates that authority

to enforce alone, even if discretionary, is sufficient to overcome sovereign

immunity. Specifically, the Plaintiffs quote language, joined only by a plural-

ity of Justices, that Ex parte Young applied to state officials “who may or must

take enforcement actions against the petitioners.” Whole Woman’s Health,

595 U.S. at 45 (emphasis added). The Plaintiffs suggest the “may or must”

language of the plurality changes our precedent regarding the scope of the

enforcement connection required under Ex parte Young.

Of course, the portion of the Supreme Court’s decision on which the

Plaintiffs rely did not gain a majority of the Court. Id. We may not overrule

one of this court’s precedents unless “such overruling is unequivocally di-

rected by controlling Supreme Court precedent.” In re Tex. Grand Prairie

Hotel Realty, LLC, 710 F.3d 324, 331 (5th Cir. 2013) (quoting Reed v. Fla.

Metro. Univ., Inc., 681 F.3d 630, 648 (5th Cir. 2012) (Dennis, J., specially

concurring)). Four other Justices did agree the suit in Whole Woman’s Health

could continue against certain state licensing officials “who retain authority

to enforce” the challenged statute. Whole Woman’s Health, 595 U.S. at 59–

60 (Roberts, C.J., joined by Breyer, Sotomayor, and Kagan, JJ., concurring in

the judgment in part and dissenting in part). These Justices concurred only

in the judgment, not the reasoning, of the plurality, and there is no common-

ality between those opinions that would allow us, much less unequivocally

direct us, to overrule our binding precedents. See Drive Fin. Servs., LP v.

Jordan, 521 F.3d 343, 349–50 (5th Cir. 2008).

In addition, the Plaintiffs’ reliance on Whole Woman’s Health is mis-

placed: the statutes in that case purporting to grant state officials authority

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to enforce the challenged laws were markedly different from what is at issue

here. Even when the Supreme Court expresses a rationale that does not com-

mand a majority, we treat the Court’s holding as binding “in cases presenting

an essentially indistinguishable factual scenario.” Id. at 350. The factual sce-

narios between this case and Whole Woman’s Health are readily distinguisha-

ble. In Whole Woman’s Health, the eight Justices that agreed the plaintiffs’

suit could proceed relied on Texas Occupational Code Section 164.055(a) for

their determinations that the state licensing officials, in the words of the plu-

rality, “may or must take enforcement actions against” the plaintiffs if they

violate the challenged statute. Whole Woman’s Health, 595 U.S. at 45–46.

The cited provision states that “[t]he board shall take an appropriate disci-

plinary action against a physician who violates” the statute that the plaintiffs

challenged. Tex. Occ. Code § 164.055(a) (emphasis added). 9

Here, there is no statute that commands Ogg to prosecute Texas Elec-

tion Code violations. Instead, Ogg’s authority to bring criminal prosecutions

on behalf of the State is derived from the Texas constitution, as recognized

in Stephens, 663 S.W.3d at 52, and from the Texas Code of Criminal Proce-

dure, which states “[i]t shall be the primary duty of all prosecuting attor-

neys . . . to see that justice is done,” Tex. Code Crim. P. art. 2.01. 10 Un-

der Texas Occupational Code § 164.055(a), the specific duty of the licensing

officials to take enforcement action was clear. Here, there is no such clarity.

_____________________

9

Under Texas law, “[t]he term ‘shall,’ . . . ‘imposes a duty.’” Garza v. Harrison,

574 S.W.3d 389, 402 (Tex. 2019) (quoting Tex. Gov’t Code § 311.016(2)).

10

Although we do not evaluate the terms of each challenged S.B. 1 provision, we

are not departing from our approach to evaluate Ogg’s enforcement connection

“‘provision-by-provision.’” Texas All., 28 F.4th at 672 (quoting Texas Democratic Party II,

978 F.3d at 179). We are able to do so because the source of Ogg’s purported enforcement

connection is the same for all S.B. 1 provisions that create or implicate criminal

punishment. Accordingly, our analysis is the same for each provision.

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Finally, Texas law did not give the licensing officials authority to en-

force the statute that was challenged in Whole Woman’s Health. After the

Supreme Court remanded the case to this court, we certified to the Supreme

Court of Texas the question of whether state law authorized the named li-

censing officials to enforce the statute. Whole Woman’s Health v. Jackson, 23

F.4th 380, 389 (5th Cir. 2022). The court answered that the licensing offi-

cials could not enforce the challenged statute because its “exclusive-enforce-

ment provision” provided it could only be enforced through private civil ac-

tions. Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 576–77 (Tex.

2022). Accordingly, we remanded with instructions to dismiss all challenges

to the private enforcement provisions. Whole Woman’s Health v. Jackson, 31

F.4th 1004, 1006 (5th Cir. 2022).

In sum, “[t]o be amenable to suit under [Ex parte Young], the state

actor must both possess the authority to enforce the challenged law and have

a sufficient connection [to] the enforcement of the challenged act.” Haver-

kamp v. Linthicum, 6 F.4th 662, 670 (5th Cir. 2021) (third alteration in origi-

nal) (emphasis added) (quotation marks and citations omitted). Here, Ogg

has discretionary authority to bring criminal prosecutions within her jurisdic-

tion, including for violations of the Texas Election Code. This authority is

not derived from that code itself but is rooted in the Texas constitution. Ogg

has a general duty to “see that justice is done,” Tex. Code Crim. P. art.

2.01, but that is not enough. Texas All., 28 F.4th at 674.

In some prior Texas election law cases where we held the named de-

fendant was not the proper Ex parte Young defendant, we identified those

state officials who could be proper defendants under the doctrine. See id. at

672–73; Ostrewich v. Tatum, 72 F.4th 94, 100–01 (5th Cir. 2023); Mi Familia

Vota v. Abbott, 977 F.3d 461, 468 (5th Cir. 2020). We do not do so here be-

cause, as the Plaintiffs maintain, it may very well be that “no state official[]

ha[s] a greater connection to the Criminal Provisions than district attorneys

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like Ogg.” The Plaintiffs therefore may reasonably wonder if not Ogg, then

who?

Nevertheless, “as panels before us, we find that we need not define

the outer bounds of this circuit’s Ex parte Young analysis today.” City of Aus-

tin, 943 F.3d at 1000. Instead, we analyze our other enforcement connection

guideposts to confirm our conclusion that Ogg is not the proper Ex parte

Young defendant.

B. Ogg’s willingness to enforce the challenged provisions

Our second Ex parte Young enforcement connection guidepost is

whether the official has a “demonstrated willingness” to enforce the chal-

lenged statute. Texas All., 28 F.4th at 672 (citation omitted). This means

“the state officials must have taken some step to enforce” the statute. Texas

Democratic Party I, 961 F.3d at 401. In deciding how big the step must be,

“the bare minimum appears to be ‘some scintilla’ of affirmative action by the

state official.” Id. (citation omitted). Such action may be shown through

past enforcement of the statute. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins.,

Div. of Workers’ Comp., 851 F.3d 507, 519 (5th Cir. 2017). If the plaintiffs

bring a pre-enforcement action, as has occurred here, prior enforcement ob-

viously will be lacking. Nevertheless, we still require “‘some scintilla’ of af-

firmative action by the state official.” Texas Democratic Party I, 961 F.3d at

401 (citation omitted).

In finding the Plaintiffs met their burden on this guidepost, the district

court applied our Article III standing analysis to the Ex parte Young issue.

Specifically, the district court relied on our decision in Speech First, Inc. v.

Fenves, 979 F.3d 319 (5th Cir. 2020). There, we held that Speech First had

associational standing to challenge the University of Texas at Austin’s

speech regulations. Id. at 330, 338. We stated that “when dealing with pre-

enforcement challenges to recently enacted (or, at least, non-moribund)

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statutes that facially restrict expressive activity by the class to which the

plaintiff belongs, courts will assume a credible threat of prosecution in the

absence of compelling contrary evidence.” Id. at 335 (quoting New Hamp-

shire Right to Life PAC v. Gardener, 99 F.3d 8, 15 (1st Cir. 1996)). The district

court relied on this statement to assert that a conclusion “that the Private

Plaintiffs lack[] standing to challenge the provisions that create or implicate

criminal offenses based on the purported absence of any enforcement of these

laws for now, would improperly and permanently deprive the Private Plain-

tiffs of much-needed relief later.” As part of their arguments on appeal, the

Plaintiffs also rely on Speech First and other standing cases regarding the First

Amendment.

As is clear on the face of the district court’s decision, its analysis was

focused on standing, not Ex parte Young’s enforcement connection require-

ment. We have previously highlighted the similarities between our Ex parte

Young analysis and our Article III standing analysis. 11 See City of Austin, 943

F.3d at 1002. Nonetheless, they are “not identical.” NiGen Biotech, LLC v.

Paxton, 804 F.3d 389, 394 n.5 (5th Cir. 2015).

Standing is the “irreducible constitutional minimum” for federal

courts to exercise jurisdiction under Article III’s “case” or “controversy”

requirement. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Sovereign

immunity presents a common law barrier to the exercise of federal judicial

power that predates Article III. See Blatchford v. Native Vill. of Noatak & Cir-

cle Vill., 501 U.S. 775, 779 (1991). The Eleventh Amendment reinforced this

_____________________

11

The “significant[] overlap” between standing and our Ex parte Young

enforcement connection guideposts primarily rests with the traceability and redressability

components of standing. City of Austin, 943 F.3d at 1002. Where, as here, a pre-

enforcement action is brought seeking an injunction, our guideposts regarding a particular

duty and a demonstrated willingness to enforce may also overlap with whether threatened

injury is sufficiently imminent to support standing. See id.

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barrier by forbidding federal courts from construing Article III to allow suits

against the States without their consent. See Alden v. Maine, 527 U.S. 706,

722–23, 726–27 (1999). Ex parte Young was a judicial invention that provides

a narrow pathway to overcome sovereign immunity that is necessary to guar-

antee “the effective supremacy of rights and powers secured elsewhere in the

Constitution.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105

(1984) (quoting Perez v. Ledesma, 401 U.S. 82, 106 (1971) (Brennan, J., con-

curring in part and dissenting in part)).

Our enforcement connection guideposts, on the other hand, help en-

sure that a defendant has “some connection with the enforcement of the

act,” in the absence of which the State becomes the real party, in violation of

the Eleventh Amendment. Ex parte Young, 209 U.S. at 157. Thus, what is

sufficient for standing will not necessarily establish an enforcement connec-

tion. Here, regardless of whether the record is sufficient to establish stand-

ing, it does not support the conclusion that Ogg has demonstrated a willing-

ness to enforce the challenged election code provisions.

Ogg has taken no action with respect to the Texas Election Code pro-

visions challenged by the Plaintiffs. Ogg never enforced the challenged pro-

visions in the past, as this suit was brought only six days after the governor

signed S.B. 1 and months before its provisions became effective. A history of

prior enforcement is not required, especially in the pre-enforcement context

that applies here. See Calhoun v. Collier, 78 F.4th 846, 851 (5th Cir. 2023).

Nevertheless, the Plaintiffs must allege some action taken by Ogg to show a

demonstrated willingness to enforce. Texas Democratic Party I, 961 F.3d at

401. The Plaintiffs have not done so.

Ogg argues she has demonstrated her unwillingness to enforce S.B. 1

by offering to stipulate that she will not enforce the challenged criminal pro-

visions until a final, non-appealable decision has been issued in this case. The

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district court discounted Ogg’s offer because an offer not to enforce “for

now” would not prevent her from enforcing the statute “later” if the case

were dismissed. The Plaintiffs assert on appeal that Ogg’s stipulation argu-

ment is meritless because the stipulation “was not agreed to by the parties”

and is “severely limited in scope.”

The district court’s analysis and the Plaintiffs’ argument regarding

Ogg’s stipulation focus on the wrong people at the wrong time. We have

discussed that the district court’s analysis relied on our standing precedent,

and its point about the stipulation is well taken in the standing context. Our

focus, however, is not on standing. To determine whether an official has

demonstrated a willingness to enforce a challenged statute, we consider the

prior or contemporaneous affirmative acts of the named official. See, e.g.,

K.P. v. LeBlanc, 627 F.3d 115, 124–25 (5th Cir. 2010) (Board’s prior enforce-

ment of the statute); NiGen, 804 F.3d at 395 (Attorney General’s letters

threatening enforcement). This is consistent with Ex parte Young’s founda-

tional requirement that a violation of federal law be ongoing. Verizon Md., Inc.

v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). Although an “actual

threat of or imminent enforcement is not required,” Calhoun, 78 F.4th at 851

(quotation marks and citation omitted), some affirmative action on the part of

the named defendant is, Texas Democratic Party I, 961 F.3d at 401.

For these reasons, the Plaintiffs’ failure to accept Ogg’s stipulation is

irrelevant. Our focus is on Ogg’s prior or likely actions. She has attested that

she will not attempt to enforce the challenged provisions until this suit is

over. Although we have not ruled on this previously, other circuits have held

that officials’ attestations that they will not enforce a challenged statute while

litigation over its constitutionality is ongoing sufficiently negates the charge

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of a demonstrated willingness to enforce. See, e.g., Minnesota RFL Repub.

Farmer Lab. Caucus v. Freeman, 33 F.4th 985, 992 (8th Cir. 2022). 12

The Plaintiffs’ refusal to agree to Ogg’s stipulation does not affect

Ogg’s promise not to enforce the challenged statutes. On appeal, Ogg con-

tinues to assert that she will abide by that promise. Similarly, a “failure to

disavow future prosecutions” following litigation “is not fatal to [an offi-

cial’s] claim of Eleventh Amendment immunity.” Id. Thus, although it may

be relevant for standing, Ogg’s failure to disavow prosecutions after this liti-

gation concludes is not a basis for finding Ex parte Young applies. 13

The Plaintiffs also argue that “Ogg is likely to enforce because the At-

torney General and Secretary of State have significant control and influence

over her enforcement discretion, and have threatened enforcement of the

Criminal Provisions.” The Plaintiffs cite several election code provisions

that require the Attorney General and district attorneys to investigate certain

violations of the Texas Election Code and authorize the Attorney General to

request assistance from district attorneys when conducting such investiga-

tions. See Tex. Elec. Code §§ 273.001, 273.002, 273.022. Although

these provisions may be relevant for standing, see Speech First, 979 F.3d at

_____________________

12

We do not resolve whether statements made during the course of litigation about

future behavior, by themselves, are sufficient to insulate state officials from Ex parte

Young’s exception to sovereign immunity. For our purposes here, it is enough to say that

Ogg’s promise not to enforce the challenged election code provisions provides further

evidence that she is not a proper Ex parte Young defendant.

13

To the extent Ogg reneges on her promise, the Plaintiffs may be able to amend

their complaint to reassert their constitutional claims and overcome sovereign immunity

because “claims barred by sovereign immunity are dismissed without prejudice.” Block v.

Tex. Bd. of L. Exam’rs, 952 F.3d 613, 620 (5th Cir. 2020) (quotation marks and citation

omitted).

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330–31, they provide no support for the Plaintiffs’ contentions within the

context of our enforcement connection analysis.

First, as noted, our focus is on Ogg’s actions, not on those of other

officials. Second, the Plaintiffs’ arguments not only assume the Attorney

General and Secretary of State will attempt to influence Ogg, but also assume

she will be influenced. The Stephens court explained that the Texas consti-

tution “mandates a vertical separation of powers between the Attorney Gen-

eral and the district attorneys in matters of criminal prosecution.” Stephens,

663 S.W.3d at 50. It would violate this separation of powers for the Attorney

General and Secretary of State to exercise undue influence over Ogg’s pros-

ecutorial discretion. Id. We will not presume such a violation.

The Plaintiffs thus have not shown Ogg has demonstrated a willing-

ness to enforce the contested election code provisions.

C. Ogg’s compelling or constraining the Plaintiffs

To determine whether an official has a sufficient connection to the

challenged statute, we analyze what “enforcement” means in the context of

that statute. City of Austin, 943 F.3d at 1000. “Panels in this circuit have

defined ‘enforcement’ as ‘typically involv[ing] compulsion or constraint.’”

Id. (alteration in original) (quoting K.P., 627 F.3d at 124). Although there

may be many officials involved in enforcing a statute, “[i]f the official does

not compel or constrain anyone to obey the challenged law, enjoining that

official could not stop any ongoing constitutional violation.” Texas All., 28

F.4th at 672.

The Plaintiffs argue “the threat of enforcement by Ogg has con-

strained Plaintiffs from engaging in activities” that S.B. 1 purports to prohibit

“for fear of prosecution.” The Plaintiffs assert their members have been de-

terred from participating in “voter education and [get-out-the-vote] efforts.”

The Plaintiffs also allege that “they have instructed their members . . . ‘not

29

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to provide direct, in-person voting assistance’” and are no longer “providing

volunteers with food, student stipends, and other incentives that could be

construed as illegal ‘compensation.’”

Those allegations do not affect our earlier analysis that Ogg has not

done or threatened to do anything. We focus our attention on Ogg’s actions.

See K.P., 627 F.3d at 125; NiGen, 804 F.3d at 395. In some cases, it is difficult

to determine whether a state official’s role in enforcing a challenged statute

amounts to “compulsion” or “constraint.” For example, in one decision,

we analyzed whether the Texas Commissioner of Insurance and the Texas

Commissioner of Workers’ Compensation “enforced” the Texas Workers’

Compensation Act that was allegedly preempted by federal law as applied in

that case. Air Evac, 851 F.3d at 510–11, 519. We held that by setting maxi-

mum rates insurers can pay healthcare providers for workers’ compensation

claims and by arbitrating any fee disputes, the Commissioners “constrain Air

Evac’s ability to collect” what would have been allowed under federal law.

Id. at 519 (emphasis in original). Conversely, where the official’s role in en-

forcing a statute was merely to train and advise other officials, such acts did

not “compel or constrain” anyone to comply with the statute. Ostrewich, 72

F.4th at 100–01.

Here, the Plaintiffs allege the existence of the challenged statutes cou-

pled with Ogg’s authority to prosecute criminal cases constrained the Plain-

tiffs because of their fear of prosecution. Although this fear of prosecution

may be sufficient for standing, it is insufficient to demonstrate compulsion or

constraint under our Ex parte Young precedent. Ogg has neither enforced the

challenged statute against anyone nor threatened to do so. Ogg has authority

to prosecute those that violate the election code; the threat of criminal pros-

ecution may be the pinnacle of compulsion or control. See Steffel v. Thomp-

son, 415 U.S. 452, 475 (1974). We have held, however, that “the mere fact

that the [state official] has the authority to enforce [the challenged statute]

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cannot be said to ‘constrain’” the party challenging the statute. City of Aus-

tin, 943 F.3d at 1001 (emphasis in original). Furthermore, to the extent the

Plaintiffs argue Ogg’s ability to investigate election code violations compels

or constrains their conduct, that power does not rise to the level of compul-

sion or constraint needed. Ostrewich, 72 F.4th at 101. Thus, the Plaintiffs

have failed to demonstrate that Ogg has acted or will likely act in a way that

would compel or constrain the Plaintiffs in order to “strip” Ogg of her sov-

ereign immunity. Id.

We conclude Ogg is not a proper Ex parte Young defendant. We rec-

ognize that this may seem contradictory because we often have said “local

officials” likely would be proper Ex parte Young defendants in the context of

other election law cases. See, e.g., Mi Familia Vota, 977 F.3d at 468. Never-

theless, a “case-by-case approach to the Young doctrine has been evident

from the start.” Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S. 261, 280

(1997). We continue that approach today.

The Plaintiffs protest that holding Ogg is an improper Ex parte Young

defendant “invites an absurd outcome in which no valid officer can be sued

to provide relief from constitutional violations.” Our holding simply reflects

that “those seeking to challenge the constitutionality of state laws are not al-

ways able to pick and choose the timing and preferred forum for their argu-

ments.” Whole Woman’s Health, 595 U.S. at 49. The Supreme Court “has

never recognized an unqualified right to pre-enforcement review of constitu-

tional claims in federal court.” Id. The simple fact is that “many federal

constitutional rights are as a practical matter asserted typically as defenses to

state-law claims, not in federal pre-enforcement cases like this one.” Id. at

49–50. This is not absurd.

In summary, the guideposts we just considered demonstrate that Ogg

is not a proper defendant under Ex parte Young.

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No. 22-50732

III. Pendent appellate jurisdiction to review standing

Ogg asks us to exercise pendent appellate jurisdiction to review the

district court’s determination that the Plaintiffs’ have standing to bring stat-

utory claims from which she is not immune. Whether to exercise pendent

appellate jurisdiction to address determinations not properly subject to col-

lateral order jurisdiction is a matter of discretion. See Byrum v. Landreth, 566

F.3d 442, 449 (5th Cir. 2009). “Beyond the limited right to an interlocutory

appeal, the ability to enjoy pendent appellate jurisdiction is carefully circum-

scribed.” Escobar v. Montee, 895 F.3d 387, 391 (5th Cir. 2018). Pendent ap-

pellate jurisdiction may be exercised “(1) [i]f the pendent decision is ‘inex-

tricably intertwined’ with the decision over which the appellate court other-

wise has jurisdiction,” or “(2) if ‘review of the former decision [is] necessary

to ensure meaningful review of the latter.’” Id. (second alteration in original)

(quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1995)).

Ogg argues we should exercise our discretion here because the signif-

icant overlap between standing and our Ex parte Young analysis makes the

two inextricably intertwined. Therefore, a review of standing would ensure

our review of sovereign immunity is meaningful. In an unpublished opinion,

a previous panel of this court agreed. See Williams v. Davis, No. 22-30181,

2023 WL 119452, at *4 (5th Cir. Jan. 6, 2023).

In deciding whether to follow that panel’s course, we first consider

that it may be appropriate to exercise pendent appellate jurisdiction if: “(1)

the court will decide some issue in the properly brought interlocutory appeal

that necessarily disposes of the pendent claim; (2) addressing the pendent

claim will further the purpose of officer-immunities by helping the officer

avoid trial; (3) the pendent claim would be otherwise unreviewable; or (4) the

claims involve precisely the same facts and elements.” Escobar, 895 F.3d at

392–93. Ogg’s appeal of the district court’s standing determination fits into

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none of these categories because (1) our sovereign immunity holding will not

necessarily dispose of the issue of standing; (2) addressing standing over

claims from which Ogg is not immune will not further the purpose of immun-

ity; (3) standing is otherwise reviewable; and (4) standing and our Ex parte

Young analysis do not “involve precisely the same facts and elements.” Id.

We have already explained why this is so.

More to the point, the parties’ briefing before us and our decision con-

cerning the Plaintiffs’ constitutional claims make this an ill-suited case to ad-

dress standing at this time. The district court relied on a diversion-of-re-

sources theory to find the Plaintiffs had organizational standing against Ogg.

That is, the district court found the Plaintiffs sufficiently alleged the chal-

lenged provisions of S.B. 1 will force them to divert resources from their or-

dinary activities to counteract the law’s effects, thereby causing them organ-

izational injury. In her briefing before us, Ogg does not even mention the

argument. Were this any issue other than standing, we would say that Ogg

has forfeited the argument. See Rollins v. Home Depot USA, 8 F.4th 393, 397

& n.1, 398 (5th Cir. 2021).

Instead of addressing the district court’s reasoning on standing, the

parties dispute whether the Plaintiffs have associational or organizational

standing and whether they or their members are injured by fear of future

prosecution. 14 The district court was presented with this basis for standing

but made its determination under the diversion-of-resources theory. Thus,

although we are mindful of our continuing obligation to assure ourselves of

_____________________

14

Unlike Ogg, the Plaintiffs mention the actual basis for the district court’s

standing determination and ask us to affirm on those grounds should we reach the issue.

Ogg did not respond to these arguments.

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No. 22-50732

jurisdiction, we will not decide the issue on a basis not reached by the district

court, especially when the parties do not dispute that basis.

Finally, it may be necessary for the district court to reexamine the is-

sue of standing in light of our decision today. Our holding requires the dis-

trict court to dismiss the Plaintiffs’ constitutional claims against Ogg because

she is immune from them. Neither the Plaintiffs’ amended complaints nor

their briefs provide a clear delineation of how their injuries are attributable to

their statutory claims independent of their constitutional claims. This makes

an initial decision from our court on the matter particularly questionable.

Now that their constitutional claims can no longer be asserted against Ogg, a

new determination on standing may be needed. We know the district court

will “carefully consider . . . jurisdictional challenges before proceeding to the

merits.” Planned Parenthood Gulf Coast, 24 F.4th at 454.

CONCLUSION

In summary, jurisdiction exists to consider whether Ogg is immune

from certain claims even though immunity is abrogated for others. The Plain-

tiffs fail to demonstrate an adequate enforcement connection between Ogg

and the challenged provisions of S.B. 1 for Ex parte Young to apply. We do

not reach Ogg’s arguments about standing.

REVERSED in part, VACATED in part, and REMANDED.

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