Texas Alliance for Retired Americans v. Scott

Southern District of Texas

ENTBRED

September 25, 202(

UNITED STATES DISTRICT COURT David J. Bradley, Clerk

SOUTHERN DISTRICT OF TEXAS

LAREDO DIVISION

TEXAS ALLIANCE FOR RETIRED §

AMERICANS, et al, §

§

Plaintiffs, §

VS. § CIVIL ACTION NO. 5:20-CV-128

§

RUTH HUGHS, §

§

Defendant. §

' MEMORANDUM AND ORDER

Kivery day federal judges are called upon to make important decisions that

impact people’s lives. While these decisions may come to bear on political processes,

they are wholly based on the law, the facts, and are devoid of political and personal

preferences. The Constitution leaves decisions about the administration of elections

to the states. But it assigns to the courts the duty to decide whether those laws cross

constitutional boundaries. With that duty, the Court carefully and impartially

considers all matters before it, including the one before it today.

We are a month away from the general election, and Texas, like the rest of our

nation, is reeling from the effects of an ongoing pandemic. COVID-19 has strained

our health systems, ravaged small businesses, and fundamentally altered the way we

lead our day to day lives. In these extraordinary times, Plaintiffs call upon this Court

to uphold the fundamental right to vote. This right, so necessary for our democracy

to function and flourish, is guaranteed to all citizens regardless of race, color,

ethnicity, gender, income, or political affiliation.

Plaintiffs renew their challenge of House Bill 25, a Texas election law which

will eliminate straight-ticket voting, a century-old practice that allows Texan voters

to cast their votes for all candidates of their preferred political party with the click of

a single box at the top of their ballot. Plaintiffs seek to enjoin the State of Texas from

implementing House Bill 25 and seek a declaration that this Bill places undue

burdens on the rights of voters, contravenes Section 2 of the Voting Rights Act, and

intentionally discriminates against the viewpoints of the Democratic Party (Dkt. No.

1). They also seek a preliminary injunction (Dkt. No. 5). The State of Texas, through

Texas Secretary of State Ruth Hughs, is opposed (Dkt. Nos. 26, 29, 39).

The Court has carefully reviewed the parties’ arguments, the record, and the

applicable law, and for the reasons below Plaintiffs’ Motion for Preliminary

Injunction (Dkt. No. 5) is GRANTED; Secretary Hughs’ Motion to Dismiss (Dkt.

No. 26) is GRANTED IN PART and DENIED IN PART; and the Secretary's Motion

to Strike (Dkt. No. 39) is DENIED.

Background

In a vote largely divided along partisan lines, Texas passed HB 25, see H.B. 25,

85th Leg., Reg. Sess. (Tex. 2017), which eliminates a 100-year-old practice that allows

Texans to cast their votes for all candidates running under the banner of their

preferred political party with a single punch. This practice, known as straight ticket

voting (“STV”) or one-punch voting, allows a voter to efficiently cast her votes by

making an initial selection corresponding to her preferred party, which then

automatically selects the party’s nominee in each race. The voter could then modify

her choice in any individual race. As such, STV allowed not only for expedited

straight-ticket voting, but also for expeditious split-ticket voting. Although Texas was

not alone in its use of STV, most states no longer provide the option. See Straight

Ticket Voting States, Natl Council of State Legislators (Mar. 25, 2020),

https://www.ncsl.org/research/elections-and-campaigns/straight-ticket-voting.aspx

(listing six states that will allow STV in 2020 elections). Still, Texas voters and

election administrators have come to rely on STV as an integral component of the

State’s elections. For example, in the 2018 general election, approximately two-thirds

of voters—over 5.6 million Texans—used STV to cast their ballots (Dkt. No. 1 at 12).

Texans’ reliance on STV likely stems from Texas’ exceptionally lengthy ballots, which

sometimes list as many as 95 races in a single county (id.).

Proponents of HB 25 claimed it would lead to a more educated and engaged

electorate, reasoning that if voters are required to make an individual selection in

every partisan race, voters will be more likely to seek out information about those

individual races. The Bill’s proponents also asserted that the elimination of STV

would make races more competitive, lead to better qualified candidates, reduce

confusion, and decrease unintentional “roll-off,” the phenomenon of voters voting in

the partisan races, but not the nonpartisan ones, which are often relegated to the end

of the ballot (Dkt. No. 26 at 39-40).

Plaintiffs bring this lawsuit to challenge HB 25. Plaintiffs are three

organizations—the Texas Alliance for Retired Americans (“TARA”), the national

senatorial committee of the Democratic Party (“DSCC”), and the national

congressional committee of the Democratic Party (“DCCC”) (collectively,

“Organizational Plaintiffs”)—and one individual, Sylvia Bruni, the Chair of the Webb

County Democratic Party (Dkt. No. 1 at 7-10). Defendant Ruth Hughs is the Texas

Secretary of State and is sued in her official capacity as the State’s chief election

officer (id. at 11 (citing Tex. Elec. Code § 31.001 (a))).

In March 2020, Plaintiffs Bruni, DSCC, DCCC, along with the Texas

Democratic Party (“TDP”) and Jessica Tiedt, a candidate for the Texas State House

of Representatives, challenged HB 25’s validity under the United States Constitution

and the Voting Rights Act. See Bruni v. Hughs, No. 5:20-CV-35, 2020 WL 3452229,

at *1(S8.D. Tex. June 24, 2020). In brief, Plaintiffs predicted HB 25 would cause longer

lines at polling places, increased roll-off, voter confusion, and lower turnout from

Democratic Party voters. After careful scrutiny of the pleadings in that case, this

Court dismissed the suit without prejudice, finding that Plaintiffs did not have

standing to sue because their “alleged injuries fail[ed] to satisfy the imminence

requirement of Article III because they are premised on numerous predicted ‘effects’

of HB 25 which [were] uncertain to occur.” Id. at *5.

Plaintiffs have now dropped Tiedt and TDP as parties, added TARA, and filed

this suit (see Dkt. No. 1). Plaintiffs still allege that the enforcement of HB 25 will

cause long lines, burden Texan voters, have a disproportionate effect on the African-

American and Hispanic population, and decrease turnout for the Democratic Party,

all in violation of the First, Fourteenth, and Fifteenth Amendments to the United

States Constitution and Section 2 of the Voting Rights Act (id. at 6—7). They filed this

lawsuit under 42 U.S.C. §§ 1983 and 1988 against Secretary of State Hughs, who is

tasked with adopting rules for the elimination of STV. See 2017 Tex. Sess. Law Serv.

Ch. 404. Ultimately, Plaintiffs seek an injunction to stop HB 25 from taking effect

and a declaration that the Bill violates the above-named provisions of the

Constitution and Voting Rights Act (Dkt. No. 1). For now, they seek a preliminary

injunction (Dkt. No. 5).

The Court addresses Plaintiffs’ pertinent factual allegations with the required

legal presumption that at this stage of the litigation—Plaintiffs’ allegations must be

accepted as true. Stratta v. Roe, 961 F.3d 340, 349 (5th Cir. 2020). Plaintiffs point out

that that Texans endure long lines when casting votes at polling places (Dkt. No. 1

at 13-15). They have several detailed studies and articles to support this allegation

(id. at 13-14). These long lines, they allege, disparately impact minorities who

“overwhelmingly” support the Democratic Party (id. at 27). They reason that

minorities are more likely to “(1) live in poverty, (2) have less flexible job schedules,

(8) lack access to transportation, and (4) lack access to child care assistance,” which

causes them to “leave polling-place lines” and avoid “attempting to vote” altogether

(id.). In short, Plaintiffs allege that minorities are “less able to withstand long

polling-place lines” (id. at 38).

Plaintiffs contend that STV “reduces voting time and minimizes wait times at

polling places” (id. at 2). Stated differently, Plaintiffs reason that straight-ticket

voting helps prevent long lines and increase the speed at which citizens cast their

votes by permitting them to do so for all races on a given ballot with a single punch.

This is especially important because, as Plaintiffs point out, ballots in Texas elections

are generally lengthy and may include up to 95 races (id. at 12).

Thus, the elimination of STV, Plaintiffs allege, will significantly increase the

length of lines at polling places and increase the risk voters will leave the line or

choose to make no attempt at voting. Plaintiffs cite to a state legislator who

summarizes their position:

[L]ong waits at polling places already are huge problems in some parts

of Texas, especially in urban areas where many voters line-up to vote for

many races on the ballot. On the first day of early voting for the

November 2016 election, for example, long waits—sometimes hours—

were reported in Bexar, Harris, Nueces, and Denton counties. Lines and

ballot fatigue can exhaust voters’ patience, and eliminating the

straight-party option would only make things worse and cause many

either to skip down-ballot races altogether or not go to the polls at all.

The effect would be to suppress voting and voter turnout.

(id.) (citing Tex. S.J., 8th Leg., Reg. Sess., Sen. Zaffirini (May 18, 2017)).

Moreover, Plaintiffs allege that “by unsettling a century-old reliance on STV”

HB 25 will confuse voters and will frustrate Plaintiffs’ missions at turning out voters

who support their candidates and causes (id. at 9-12).

Significantly, Plaintiffs allege that the current public health crisis caused by

the COVID-19 pandemic prevents Texas election officials from implementing

adequate mitigation efforts (id. at 28-31). First, the need for adequate social

distancing prevents election officials from increasing the number of voting machines

(id. at 28-29). Second, the risk of becoming a vector for the disease’s spread will cause

venues to abstain from participating as polling places (id. at 28-30). Third, the risk

of catching the virus will hamper efforts to recruit more poll workers or even maintain

pre-pandemic volunteer numbers (id. at 30). And fourth, the delay of many March

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2020 elections to this November’s general election will further lengthen the already

long ballots and further increase the problem of long lines and wait times (id. at 31).

Consequently, Plaintiffs allege that longer lines at polling-places will

significantly burden Texans’ right to vote, especially in light of the increased exposure

to COVID-19 voters risk by waiting in longer lines (id. at 22-32). Given Texas’

“existing problem of long polling-place lines,” Plaintiffs argue, the elimination of

straight-ticket voting will “exponentially increase” the time that Texans will wait to

cast their ballots at polling places, which will cause “a substantial number of

additional voters [to] leave polling-place lines without voting” and dissuade others

from attempting to vote at all (id. at 22, 25). Plaintiffs also allege that they will be

injured by the predicted effects of HB 25 because they will need to “divert and expend

additional time and resources in voter education and turnout” (id. at 9-11).

Plaintiffs allege that these predicted effects will disproportionately burden

minority voters and voters who support the Democratic Party (id. at 22~—32). This will

cause Democratic candidates to lose votes at polling-places that would have otherwise

been cast for them (id. at 27-28). These effects, Plaintiffs allege, will be worse in

subsequent elections, because the ballots in Texas’ midterm elections are even longer

than those used in general elections.

Finally, Plaintiffs allege that a substantial reason for HB 25’s passage was the

discriminatory effect the Bill would have on minority and Democratic voters (id. at

15-22). They cite, among other things, what they consider to be irregular legislative

procedures and legislators’ dismissal of calls for more research into the Bill’s effects

. O

(id. at 15-19). They also note that the Bill lacked any provisions to mitigate the

concerns voiced by those opposing its passage and that the Bill’s passage coincided

with an increase in Democratic-voter STV use and a decline in Republican-voter STV

use (id. at 19-22).

Secretary Hughs moves to dismiss this case under Federal Rules of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(8) for improper venue,

and 12(b)(6) for failure to state a claim upon which relief can be granted (Dkt. No. 26)

and has filed a response in opposition to Plaintiffs’ Motion for Preliminary Injunction

(Dkt. No. 29). The Court will address each of these issues in turn.

Discussion

I, The Secretary’s 12(b)(1) Motion to Dismiss

A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(1)

challenges the Court’s subject matter jurisdiction. Secretary Hughs asserts a number

of theories for why this Court lacks subject matter jurisdiction. First, she argues that

Plaintiffs are barred from bringing suit because this Court has already addressed and

dismissed their claims in Bruni (Dkt. No. 26 at 20-25). Second, Secretary Hughs

argues that Plaintiffs lack standing to sue (id. at 20-80). Third, and finally, she

asserts that she is not the proper defendant against whom this suit should have been

brought (id. at 830-84).

Where, as here, a defendant lodges a “facial attack” under Rule 12(b)(1), the

Court only examines the “sufficiency of the allegations in the complaint because they

are presumed to be true.” Houston Home Dialysis v. Blue Cross and Blue Shield of

Tex., No. H-17-2095, 2018 WL 5249996, at *4 (S.D. Tex. Oct. 22, 2018) (citation

omitted); Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018). “This analysis

is generally confined to review of the complaint and its proper attachments,” Lane v.

Halliburton, 529 F.3d 548, 557 (5th Cir. 2008), and the complaint will stand “if the

jurisdictional allegations are sufficient.” Houston Home Dialysis, 2018 WL 5249996,

at *4. Under this standard, the Court finds that Plaintiffs’ allegations are sufficient

to survive the Rule 12(b)(1) challenge.

A. Issue Preclusion

“Issue preclusion ... bars ‘successive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination essential to the prior judgment,’

even if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553

U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 582 U.S. 742, 748-49 (2001)).

Along with the related doctrine of claim preclusion, this doctrine “preclud[es] parties

from contesting matters that they have had a full and fair opportunity to litigate” and

thereby “protect[s] against ‘the expense and vexation attending multiple lawsuits,

conserve[s] judicial resources, and foster[s] reliance on judicial action by minimizing

the possibility of inconsistent decisions.” Taylor, 553 U.S. at 892 (quoting Montana

v. United States, 440 U.S. 147, 153-54 (1979)).

The burden is on the Secretary to prove that issue preclusion applies to these

circumstances. Taylor, 553 U.S. at 906-07. Moreover, because issue preclusion is an

equitable doctrine, even if the Secretary demonstrates that every requirement of the

doctrine is met, the Secretary must also show the Court should apply the doctrine.

.

Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415 (5th Cir. 1995). Secretary Hughs

has not met her burden, and the Court finds that issue preclusion is inapplicable to

any of Plaintiffs’ claims and should not apply.

Issue preclusion cannot and should not apply here because the facts underlying

the claims have changed significantly since Bruni, and “changes in facts essential to

a judgment will render [issue preclusion] inapplicable in a subsequent action raising

the same issues.” Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 479

(5th Cir. 2002)(quoting Montana v. United States, 440 U.S. 147, 159 (1979)).

The “judgment” at issue here is this Court's Memorandum and Order granting

dismissal in Bruni. 2020 WL 3452229. In that opinion, this Court found that

Plaintiffs’ predicted injuries were not imminent, even within the “somewhat elastic”

confines of that concept. Jd. at *4-5. In other words, this Court considered their

predicted injuries too speculative because they relied on a chain of predicted effects

HB 25 would have on the voting process. But several developments have since

bolstered Plaintiffs’ arguments that their predicted injuries are certainly impending.

In fact, these new developments are so compelling that this Court, which only a few

months ago dismissed Plaintiffs’ claims, now holds that Plaintiffs’ claims are

sufficient to survive Secretary Hughs’ Motion to Dismiss and, moreover, warrant

extraordinary relief in the form of a preliminary injunction.

When Plaintiffs filed their Amended Complaint for Injunctive and Declaratory

Relief in Bruni on March 27, the United States was only beginning to understand the

impact that the COVID-19 outbreak would have on our everyday lives, and few would

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have predicted that the pandemic would persist well into this election cycle and that

it would have such a far reaching impact. At that time, the United States had about

100,000 confirmed infections. Jesse Yomtov & Grace Hauck, U.S. Becomes the First

Country to Reach 100,000 Confirmed Coronavirus Cases, USA Today (Mar. 27, 2020,

6:29 P.M.), https://www.usatoday.com/story/news/health/2020/03/27/coronavirus-us-

hits-100-000-confirmed-cases-1-500-deaths/2925968001/. Today, the number of

confirmed infections is 7 million and the number of dead Americans is over 200,000.

See Covid in the U.S.: Latest Map and Case Count, N.Y. Times (Sept. 25, 2020, 12:02

A.M.), https://nyti.ms/8cvsPPA (updating regularly). It is thus understandable that

voter anxiety about exercising their voting rights in person is higher than at any time

in recent memory. See Election 2020: Voters are Highly Engaged, but Nearly Half

Expect to Have Difficulties Voting, Pew Research Center (Aug. 18, 2020),

https://pewrsr.ch/2RYORTI. This, in and of itself, warrants a rehearing on whether

HB 25 will exacerbate the problem of long lines at polling places and infringe the

rights of Texans to exercise their political views by casting their ballot this

November. !

Texas’ July primary runoff election demonstrated, although at a smaller scale,

the amplifying effect the pandemic has on the problems caused by HB 25. During that

election, Texans were faced with (1) the abrupt closure of voting facilities, which □

refused to take the risk that they would become vectors for spreading the virus, (2) a

dwindling number of volunteer poll workers, who are often older and more vulnerable

1 Although this Court did not reach the question of what burden, if any, HB 25 placed

on voters, the ongoing pandemic undoubtably changes that analysis as well.

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to the virus, and (3) the need to reduce the number of voting machines at each polling

place to maintain adequate social distancing (Dkt No. 1 at 28-80).

Since that election, Texas has done little to address these logistical challenges

or the other concerns about the viability of an election where nearly every voter must,

during a pandemic caused by an airborne virus, vote in person. Even now, the

Secretary relies heavily on the fact that the number of early voting days have been

increased by 50%, but that is an increase of only 6 days, and may not suffice to make

up for the effects COVID-19 will have on the voting process or the predicted effects of

HB 25. In fact, the extra time may barely cancel out the added time caused by the

unusually high number of races and propositions likely to be on the ballot during the

November general election.

Meanwhile, other states have taken significant steps to make voting easier,

such as by expanding the use of mail-in voting and absentee voting. Texas has refused

to implement many of these changes and, in some cases, has fought such measures

in court. See Texas Democratic Party v. Abbott, No. 20-CV-50407, 2020 WL 5422917

(5th Cir. Sept. 10, 2020) (staying an injunction permitting the expansion of mail-in

voting until decision is rendered on appeal). This is not to say that Texas is not within

its rights to take, or not take, the measures mentioned above, but the failure to take

the steps necessary to mitigate the risk caused by COVID-19 and HB 25 does require

reconsideration of Plaintiffs’ claims that HB 25 will unduly burden many Texans’

right to vote.

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B. Standing

Article III of the Constitution limits the subject matter jurisdiction of federal

courts to “Cases” and “Controversies.” U.S. Const. art. ITI, § 2. One requirement which

stems from the need for a case or controversy is that a litigant must have standing to

sue. For a party to demonstrate it has standing to bring a cause of action, the party

must satisfy three requirements:

First, the plaintiff must have suffered an “injury in fact”’—an invasion

of a legally protected interest which is (a) concrete and particularized;

and (b) “actual or imminent, not ‘conjectural’ or hypothetical.” Second,

there must be a causal connection between the injury and the conduct

complained of—the injury has to be “fairly traceable to the challenged

action of the defendant, and not the result of the independent action of

some third party not before the court.” Third, it must be “likely,” as

opposed to merely “speculative,” that the injury will be “redressed by a

favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and footnote

omitted).

The elements of standing “are not mere pleading requirements but rather an

indispensable part of the plaintiffs case.” Id. at 561. Thus, “each element must be

supported ... with the manner and degree of evidence required at the successive

stages of the litigation. Id. Moreover, when plaintiffs seek prospective relief to

prevent future injuries, as they do here, they must prove that their threatened

injuries are “certainly impending.” Clapper v. Amnesty Intl USA, 568 U.S. 398, 401

(2013) Gnternal quotation marks omitted).

Importantly though, “one party with standing is sufficient to satisfy Article

IIT’s case-or-controversy requirement.” Texas v. United States, 945 F.3d 355, 377-78

(5th Cir. 2019). In such a case, the Court can address the merits of the case as to all

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Plaintiffs without delving into the issue of standing as to the other plaintiffs. See, e.g.,

Clinton v. City of New York, 524 U.S. 417, 431 n.19 (1998) (“Because both the City of

New York and the health care [plaintiffs-]Jappellees have standing, we need not

consider whether the [plaintiff-]appellee unions also have standing to sue.”). For that

reason, after addressing why Plaintiffs’ claims are now certainly impending, the

Court will focus on Organizational Plaintiffs and, finding that they meet Article ITI’s

case-or-controversy requirement, will not further analyze every other argument the

Secretary presents. The Court will then address whether the Secretary is the proper

defendant and whether Plaintiffs are otherwise barred from bringing this suit under

42 U.S.C. § 1988.

1. Plaintiffs’ Claims are Certainly Impending

Secretary Hughs’ principal argument against Plaintiffs’ standing is that their

predicted injuries are not certainly impending. Of course, this Court dismissed

Plaintiffs’ previous case for this very reason, but as already discussed, much has

changed since this Court dismissed Plaintiffs’ March 2020 complaint in Brunt. In

light of these developments, the Court finds Plaintiffs’ injuries are certainly

impending.

First, Plaintiffs alleged a great deal more than they did in their initial

complaint. For example, they allege, via expert analysis, that because of the “non-

linear relationship between voting time and average wait times,” even small

increases in the time it takes to vote could have exponentially greater impacts on the

wait times at polling places (Dkt. No. 1-2 at 9).

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Second, the passage of time, the further spread of the COVID-19 pandemic,

and the events of the Texas July 2020 runoff election all demonstrate that Texas is

unlikely to successfully mitigate the certainly impending harm caused by HB 25. As

the virus has exacted its terrible toll, it is increasingly unlikely that Texas will be

able to significantly increase the number of polling places, machines, and poll workers

on election day (see Dkt. No. 1-1 at 3-4). In fact, the need for social distancing, coupled

with the fear caused by this public health crisis, means that election officials will be

using even fewer machines and fewer poll workers (Dkt. No. 1 at 28-29).

Third, the Secretary’s claim that the pandemic may decrease voter turnout is

unpersuasive. As an initial matter, it may be entirely untrue. As Plaintiffs note,

Texans turned out in record numbers for the July 2020 election, despite the virus’

spread in Texas also being at record highs. And even if Texas is correct that the

pandemic will discourage some voters from voting, this decrease voter turnout does

not excuse Texas for making it more difficult to vote. This is especially so because

Texas is in control of many of their tools that could mitigate the risk to voters during

this pandemic.

Finally, many of these effects are likely to be exacerbated in subsequent

midterm elections, where Texas ballots are even longer than those in the general

elections.

2. Organizational Plaintiffs’ Standing

“An organization can assert Article III standing on behalf of either its members

or the organization itself.” East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 844

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(9th Cir. 2020) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982)).

Standing on behalf of an organization’s members is often referred to as “associational

standing,” whereas standing that an organization asserts for itself is “organizational

standing.” Organizational Plaintiffs assert both associational and organizational

standing, but because they have adequately pled associational standing, the Court

does not delve into their arguments that they also have suffered direct organizational

harms.

An association has standing to bring suit on behalf of its members when (a) its

members would otherwise have standing to sue in their own right; (b) the interest it

seeks to protect are germane to the organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in

the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 3338, 343

(1977). “Generally, such standing is limited to requests for prospective injunctive

relief because individual damages claims would require joinder of the individual

members.” Veasey v. Perry, 29 F. Supp. 3d 896, 904 (S.D. Tex. 2014) (citing Warth v.

Seldin, 422 U.S. 490, 515 (1975)).

According to their complaint, and relevant to this analysis, TARA is

incorporated in Texas as a 501(c)(4) nonprofit, social welfare organization under the

Internal Revenue Code and is a chartered state affiliate of the Alliance for Retired

Americans (Dkt. No. 1 at 7). TARA’s “mission is to ensure social and economic justice

and full civil rights that retirees have earned after a lifetime of work” (id. at 7-8).

TARA’s membership is composed of 145,000 Texans, a portion of whom are too young

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to qualify to vote by mail under Texas Election Code § 82.003 (id. at 8). As such,

TARA alleges that HB 25 “will burden—and in some cases entirely deprive—[TARA’s]

individual members of the right to vote, threatens the electoral prospects of its

endorsed candidates whose supporters will face greater obstacles casting a vote and

having their votes counted, and makes it more difficult for the alliance and its

members to associate to effectively further their shared political purposes” (id.).

Similarly, DSCC and DSSS, Democratic Party national committees whose missions

include turning out Texas voters who support Democratic candidates for national

office, allege that the rights of their members and constituents will be burdened due

to HB 25 (id. at 10). This, in the context of all the pleadings under consideration here,

is enough to establish associational standing on behalf of its members.

It is true that “at later stages of litigation, Plaintiffs may have to come forward

with evidence to support its allegations that specific members of its organization who

are eligible to vote in Texas have been harmed. See Summers v. Earth Island Inst.,

555 U.S. 488, 499 (2009) (requiring, at the merits stage, evidence of specific individual

members of an organization). But for now, at the pleading stage, such proof is not

required, and Plaintiffs’ allegations are sufficient to confer associational standing.

See Hancock Cnty. Bd. of Supervisors v. Ruhr, 487 F. App’x 189, 198 (5th Cir. 2012)

(“We are aware of no precedent holding that an association must set forth the name

of a particular member in its complaint in order to survive a Rule12(b)(1) motion to

dismiss based on lack of associational standing.”).

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C. The Secretary is the Proper Defendant

Yet, the Secretary argues she is not a proper defendant because sovereign

immunity bars the claims brought against her, and, in the alternative, she argues

that Plaintiffs’ predicted injuries are not fairly traceable to and redressable by the

Secretary.

First, the injuries alleged are fairly traceable to and redressable by the

Defendant. In support of her argument to the contrary, the Secretary essentially

disowns her role as the chief election officer of Texas. But, as the Fifth Circuit has

recently confirmed, “[{t]he facial invalidity of a Texas election statute is, without

question, fairly traceable to and redressable by the State itself and its Secretary of

State, who serves as the ‘chief election officer of the state.” OCA-Greater Houston v.

Texas, 867 F.3d 604, 613 (5th Cir. 2017) (quoting Tex. Elec. Code § 31.001(a)). Here,

Plaintiffs bring a facial challenge to a generally applicable Texas election statute, and

Plaintiffs’ injuries are therefore “fairly traceable to and redressable by” the Secretary.

See id. Even more recently, the Fifth Circuit reiterated this principle in response to

the Secretary making the same argument she offers here. Texas Democratic Party,

961 F.3d at 399 (rejecting argument that plaintiffs lacked standing because “local,

rather than state, officials’ implemented the challenged provision of the Texas

Election Code).

For the same reasons the Secretary is the proper defendant in this suit, the Ex

Parte Young exception to sovereign immunity applies. kx Parte Young permits

Plaintiffs’ claims against the Secretary so long as: (1) the “complaint alleges an

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ongoing violation of federal law and seeks relief properly characterized as

prospective,” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002),

and (2) the Secretary has “‘some connection’ to the state law’s enforcement.” Air Evac

EMS, Inc. v. Texas, Dep’t of Ins., Div of Workers’ Comp., 851 F.3d 507, 517 (th Cir.

2017) (quoting Ex Parte Young, 209 U.S. 123, 157 (1908)). Having already concluded

that the Secretary is sufficiently connected to the enforcement of the State’s law, the

only remaining question is whether the requested relief is “properly characterized as

prospective.” This Court concludes that it is.

The Secretary argues that Plaintiffs seek a mandatory injunction, an

injunction requiring an official to take affirmative action, which the Secretary argues

puts it outside the scope of Ex Parte Young. But Plaintiffs do not seek a mandatory

injunction. Instead, Plaintiffs ask this Court to enjoin “Defendant ... from

implementing, enforcing or giving any effect to HB 25” (Dkt. No. 1 at 46). In other

words, Plaintiffs seek to maintain the status quo. See League of Women Voters of N.C.

v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (prohibitory injunctions

“maintain the status quo”). Thus, even if the Ex Parte Young exception does not apply

to mandatory injunctions, it does apply to the injunction requested here.

D. Statutory Standing

The Secretary also argues that Plaintiffs may not bring their suit under

Section 1983 because they are relying on the rights of others (Dkt. No. 26 at 29-30).

But plaintiffs have standing to sue for voting rights violations using Section 1983 as

a vehicle for remedial, not monetary, relief. See Ass’n of Am. Physicians & Surgeons,

19

Inc. v. Texas Med. Bd., 627 F.3d 547, 551 (th Cir. 2010) (association had standing to

assert Section 1983 claims on behalf of members in seeking prospective declaratory

and injunctive relief); see also Veasey v. Perry, 29 F. Supp. 3d 896 (2014). Having

found that Organizational Plaintiffs have adequately pled associational standing, the

Secretary’s argument here lacks merit.

II. The Secretary’s 12(b)(3) Motion to Dismiss

Venue is proper where “a substantial part of the events . . . giving rise to

[Plaintiffs] claim[s]” will occur. 28 U.S.C. § 1391(b)(2). As pled, HB 25 will cause

substantial injuries in this District, making venue proper. The Southern District of

Texas covers a fourth of the State and includes a significant number of Texas voters,

and as Plaintiffs point out, “some of the highest rates of STV use, the longest polling

place lines, and the lengthiest ballots exist in the Southern District” (Dkt. No. 33 at

31) (citing Dkt. No. 1 at 18—14, 17-18). As such, HB 25 will unduly burden the voting

rights of Organizational Plaintiffs’ members in the Southern District (id.).

Secretary Hughs argues that venue is only appropriate in the Western District

of Texas, where HB 25 was passed and where Secretary Hughs works. The legislative

history and text of the venue statute undermine this position. In 1990, Congress

liberalized Section 1391(b)(2) by altering its prior focus on “the” judicial district in

which such events occurred or will occur, to “a” judicial district in which such events

occurred or will occur. Udeobong v. Hawkins, No. H-08-18338, 2009 WL 7326072, at

*1-2 (S.D. Tex. Feb. 19, 2009). In doing so, Congress clarified that a given case will

often have “more than one proper venue.” Jd. Thus, while it may be the case the

20

Western District is also an appropriate venue, it is not the case that the Southern

District is an inappropriate venue.

Ill. The Secretary’s 12(b)(6) Motion to Dismiss

Having considered and rejected the Secretary’s Rule 12(b)(1) and Rule 12(b)(8)

arguments, the Court now turns to her 12(b)(6) arguments. Plaintiffs state five causes

of action. First, they claim that HB 25 imposes an undue burden on their right to vote

in violation of the First and Fourteenth Amendments. Second, they claim HB 25

imposes an undue burden on their right to associate in violation of the First and

Fourteenth Amendments. Third, they claim HB 25 violates Section 2 of the Voting

Rights Act (““VRA”) because it has discriminatory results. Fourth, they claim that HB

25 intentionally discriminates against minority voters in violation of Section 2 of the

VRA and the Fourteenth and Fifteenth Amendments. And fifth, they claim that HB

25 discriminates on the basis of viewpoint in violation of the First and Fourteenth

Amendments.

Federal Rule of Civil Procedure 8(a)(2) requires no more than “a short and

plain statement of the claim showing that the pleader is entitled to relief.” “Pleadings

must be construed so as to do justice.” Rule 8(e). To show they are entitled to relief,

“a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. -

v. Twombly, 550 U.S. 544, 555 (2007). Rather, Plaintiffs must “state a claim to relief

that is plausible on its face.” Id. at 547. For the limited purpose of analyzing

Defendant’s Motion to Dismiss, the Court accepts Plaintiffs’ factual allegations as

true and draws all reasonable inferences in Plaintiffs’ favor.

21

A. Plaintiffs’ Undue Burden Claims

Plaintiffs make two undue burden claims with respect to HB 25. Plaintiffs

allege that (1) HB 25 places an undue burden on Texans’ right to vote and (2) HB 25

places an undue burden on Texans’ right to associate. Indeed, there is a close nexus

between the right to vote and the right to associate at the polls to advance one’s beliefs

and ideas through the ballot. “[T]he right of individuals to associate for the

advancement of political beliefs, and the right of qualified voters, regardless of their

political persuasion, to cast their votes effectively” are “two different, although

overlapping kinds of rights.” Williams v. Rhodes, 393 U.S. 23, 30 (1968).

To survive a 12(b)(6) motion to dismiss, Plaintiffs must plausibly allege that

the restrictions burden their asserted rights and are not sufficiently justified by the

State’s interest. See Lewis v. Hughs, No. 5:20-CV-577, 2020 WL 4344432 (W.D. Tex.

July 28, 2020); Miller v. Doe, 422 F. Supp. 3d 1176, 1185-86 (W.D. Tex. 2019); League

of Women Voters of Fla., Inc. v. Detzner, 354 F. Supp. 3d 1280 (N.D. Fla. 2018) (“It is

sufficient for a 12(b)(6) motion that Plaintiffs have alleged [that the challenged laws]

have burdened their voting rights.”). Accordingly, the Court, using what is known as

the “Anderson-Burdick test” will

weigh “the character and magnitude of the asserted injury of the rights

protected by the First and Fourteenth Amendments that the plaintiff

seeks to vindicate” against “the precise interests put forward by the

State as justification for the burden imposed by its rule” taking into

consideration “the extent to which those interests make it necessary to

burden the plaintiffs rights.”

Burdick v. Takushi, 504 U.S. 428, 484 (1992) (quoting Anderson v. Celebrezze, 460

U.S. 780, 789 (1983).

22

The severity of the burden imposed on the right to vote and the right to

associate determines the level of scrutiny applied to the State’s justification. Burdick,

504 U.S. at 434. If the burden is severe, then strict scrutiny applies and the regulation

“must be ‘narrowly drawn to advance a state interest of compelling importance.” Id.

(quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). But if the restrictions impose

only a small and reasonable burden, then the level of scrutiny is much lower and “the

State’s important regulatory interests are generally sufficient to justify the

restrictions.” Burdick, 504 U.S. at 434. Restrictions that are neither severe nor

minimal trigger “a flexible analysis” and the burden on plaintiffs rights must be

weighed “against the state’s asserted interest and chosen means of pursuing it.”

Michigan State A. Phillip Randolph Inst. v. Johnson, 326 F. Supp. 3d 532, 556 (H.D.

Mich. 2018).

Here, the Court finds that Plaintiffs’ undue burden claims survive Defendant’s

Motion to Dismiss. Plaintiffs argue that the elimination of STV will impose severe

burdens on Texans’ right to vote (Dkt. No. 1 at 37-39). Specifically, requiring the

more than 5.6 million Texans who used STV in the past to make individual selections

for every candidate and proposition on the ballot will increase average voting time,

which, in turn, will lead to incrementally longer wait times at the polls (id. at 22). At

worst, longer wait times at the polls will disenfranchise a substantial number of

- Texas voters who must return to work or their families and cannot afford the long

wait (id. at 5). At best, longer wait times will still unduly burden the rights of Texans

23

who must now wait longer times in line to exercise their fundamental right to vote

(id.).

For example, Plaintiffs’ expert declarations suggest that increasing average

voting time in Travis County by only 79 seconds triples the countywide average wait

time at the polls—24% of voters in the county would expect to wait more than half an

hour to cast their vote on election day (Dkt. No. 1-2 at 12-23). Increasing average

vote time in Fort Bend County would also increase the countywide average wait time

from no wait at all to almost fifteen minutes, with several polling places predicting

average wait times greater than 100 minutes (Dkt. No. 1-2 at 23-32)?

Significantly, Plaintiffs point out, the COVID-19 pandemic prevents counties

from implementing measures to mitigate the burdens caused by the increased wait

times that would result from HB 25 (Dkt. No. 1 at 4, 28-31). While counties might,

in ordinary times,? work to reduce wait times by increasing the number of voting

machines at any given polling place, CDC guidance that persons keep a six feet

distance from each other make this form of mitigation impractical and even risky.

Indeed, social distancing may even require decreasing the number of machines at

polling places to keep voters safe. In the July 2020 election, Collin County had to

2 Plaintiffs’ expert’s predictions are based on data from the 2018 election and do not

consider the challenges COVID-19 places on the administration of an election. Any effects on

wait time Plaintiffs’ expert has predicted may well be exacerbated as counties are forced to

decrease the number of voting machines and as the shortage of poll workers strains the

effective administration of the polls.

3 HB 25 does not include any provisions to mitigate its likely impact on voting times.

Instead, it leaves mitigation to the county election administrators. This pandemic shows no

signs of abating before the November 2020 election, and the Secretary offers little evidence

to show how counties can take other measures to the effects of HB 25.

24

.

decrease the number of voting machines at its main polling place from 20 to 8. Alex

Ura, What Officials are Doing to Make Runoff Election Voting Safe, The Tex. Trib.

(June 29, 2020, 5:00 A.M.), https://www.texastribune.org/2020/06/29/texas-election-

first-test-voting-safety-pandemic/. While counties could also decrease wait times at

the polls by increasing the number of polling places, Plaintiffs point out that this is

unlikely to be a successful strategy. First, in the July 2020 runoff election, counties

lost polling place venues that were unwilling to host voters during the pandemic (Dkt.

No. 1-1 at 27). Second, most states across the country, including Texas, have seen a

dramatic decline in the number of poll workers, most of whom are older citizens at

increased risk of serious infection should they contract COVID-19. Benajmin Siegel

& Olivia Rubin, Officials Seek Thousands of Poll Workers Ahead of Election Day, Fear

Shortage Due to COVID-19, ABC News (Sept. 8, 2020, 7:47 A.M.)

https://aben.ws/831VU27. Without an increase in the number of poll workers,

counties will be unable to administer more polling places. Other mitigation measures,

such as the expansion of mail-in voting, have not been implemented. See Texas

Democratic Party, 2020 WL 5422917 (5th Cir. Sept. 10, 2020) (staying an injunction

permitting the expansion of mail-in voting until decision is rendered on appeal).

Longer wait times, moreover, place the health of Texas voters at risk. The

longer a voter must stand in line before voting this fall—and for however long this

pandemic is a reality in the United States—the higher the risk of virus transmission

(Dkt. No. 1-3 at 4-10). Recent evidence from the Wisconsin election shows that people

did in fact contract the virus during in-person voting. See Devi Shastri, In-Person

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Voting Was Likely a ‘Disaster’ for Wisconsin’s Efforts to Flatten Coronavirus Curve,

National Experts Say, Milwaukee J. Sentinel (Apr. 8, 2020, 10:41 A.M.)

https://www.jsonline.com/story/news/politics/exlections/2020/040/08/cornonavirus-

wisconsin-election-likely-hurt-effort-flatten-curve/2961718001/.

While these long wait times at the polls will burden all Texans’ right to vote,

Plaintiffs assert that congestion at the polls has a disproportionately greater burden

on African-American and Hispanic voters (Dkt. No. 1 at 38). African-American and

Hispanic voters in Texas are “more likely to, among other things (1) live in poverty,

(2) have less flexible job schedules, (3) lack access to transportation, and (4) lack

access to child care assistance” (id. at 27). Even on election day, this class of voters

faces important constraints on their time. Consequently, long wait times at the polls,

Plaintiffs argue, will cause these voters to leave polling-place lines more quickly or

forgo their fundamental right to vote altogether (id.).

Finally, Plaintiffs allege that the elimination of STV serves “no legitimate, let

alone compelling governmental interest” (id. at 38). They highlight that the Secretary

does not offer evidence to demonstrate how the removal of STV, and the increased

wait times that accompany it, would result in a more informed and engaged electorate

(id. at 31). Plaintiffs also note that despite being forewarned about the possible

disproportionate burden HB 25 would have on Hispanic and African-American

Texans, supporters of HB 25 did relatively little to investigate those claims (Dkt. No.

1 at 16).

26

The Secretary makes several arguments against these allegations. First, she

asserts that forty-three other States will not offer STV in 2020, none of those state’s

laws have been declared unconstitutional, and therefore Texas’ decision to eliminate

STV cannot run afoul of the Constitution (Dkt. No. 26 at 36-37). She further argues

that any alleged burden created by HB 25 is minimal, because requiring all Texas

voters to make individual selections on the ballot does not deprive Texans of their

right to vote (td. at 38). Any increases in wait time created by HB 25, the Secretary

argues, will be sufficiently offset by Texas’ early voting period (id.). As for the stated

interest in eliminating straight ticket voting, the Secretary cites the State’s desires

to encourage more informed voting, encourage better qualified candidates to run for

office, reduce unintentional voter roll-off in nonpartisan races or propositions, make

elections more competitive for third-party and independent candidates, and reduce

voter confusion (id. at 39-41).

The Court will not weigh the merits of Plaintiffs’ claims. Taking Plaintiffs’

allegations as true, Plaintiffs sufficiently allege that HB 25 will burden Texans’ right

to vote and right to associate at the polls. It is true, HB 25 dictates the method by

which Texans vote, not whether they may cast a ballot. However, Plaintiffs’ complaint

sufficiently shows that the method in which a voter casts a ballot affects the voting

process in a way that burdens the right to vote. First, Plaintiffs’ complaint and their

expert declarations make a sufficient showing that the elimination of STV will

increase wait times at the polls. Most significantly, Plaintiffs have shown Texas’

ability to mitigate the increased wait times is severely limited by the ongoing

27

COVID-19 pandemic. The Court recognizes that the economic and time constraints

on many Texans, a disproportionate number of whom are African-American or

Hispanic, leave only a limited window of opportunity during which to cast their vote.

“Life does not stop on election day.” NAACP State Conf. of Penn. v. Cortes, 591 F.

Supp. 2d 757, 765 (E.D. Pa. 2009). The long wait times will prevent many Texans

from casting a ballot.

Plaintiffs’ allegations sufficiently show that the increased wait times caused

by HB 25 will place a burden that is greater than minimal on Texans’ right to vote

and right to associate at the polls. HB 25 will cause important delays at polling places,

place Texan voters at increased risk of catching a deadly virus, and discourage voters,

particularly those most vulnerable to the disease or under significant economic

pressure, from exercising their rights on election day.

The Court finds that the burden Plaintiffs allege is greater than minimal. The

State’s interests, therefore, are not on their own sufficient to dismiss Plaintiffs’ claims

at this stage. Accordingly, the Court denies the Secretary’s Motion as to Plaintiffs’

undue burden claims. .

B. Plaintiffs’ Voting Rights Act Claim: HB 25 has Discriminatory

Results

Plaintiffs allege that HB 25 has discriminatory results in violation of Section

2 of the Voting Rights Act (Dkt. No. 1 at 40—41).4 Section 2 of the Voting Rights Act

4 Asa preliminary matter, the Secretary argues that HB 25 does not fall within the scope

of Section 2 and that even if it does, Section 2 of the Voting Rights Act does not give Plaintiffs

a private cause of action. The statutory language of Section 2 plainly applies to any

discriminatory “standard, practice or procedure” that results in denial or abridgement of the

right to vote on account of race or color. Veasey v. Abbott, 830 F.3d 216, 243 (2016). Like many

28

forbids any state or political subdivision from imposing or applying a voting

qualification, prerequisite to voting, standard, practice, or procedure that “results in

a denial or abridgement of the right of any citizen of the United States to vote on

account of” race, color or minority status. 52 U.S.C. § 10301(a). Unlike discrimination

claims brought under the Fourteenth Amendment, Congress has clarified that

violations of Section 2(a) can “be proved by showing discriminatory effect alone.”

Thornburg v. Gingles, 478 U.S. 30, 35 (1986); see also 52 U.S.C. § 10301(b).

This is not a vote dilution claim. Because Plaintiffs allege that HB 25 “denies

or abridges” the right to vote, Plaintiffs are required to make a plausible showing

that: (1) the challenged “standard, practice, or procedure” imposes a discriminatory

burden on members of a protected class, leaving them with “less opportunity than

other members of the electorate to participate in the political process and elect

representatives of their choice,” and (2) “that burden must in part be caused by or

other courts that have considered the merits of similar controversies, this Court finds that

the elimination of STV is a practice or procedure that squarely falls within the protection of

Section 2 of the Voting Rights Act.

Initially, the Voting Rights Act expressly conferred standing upon the Attorney General.

The Supreme Court, however, has recognized that private litigants had standing to bring suit

to effectuate the goals of the Act. Allen v. State Bd. of Elections, 393 U.S. 544 (1969). The

Secretary does not supply any cases in which aggrieved persons or organizations have been

denied the right to enforce Section 2 of the VRA. In fact, organizations, like private parties,

have historically been able to enforce Section 2 of the VRA. See Crawford v. Marion Cnty.

Election Bd., 553 U.S. 181 (2008) (Seven Indiana organizations were all parties to a Section

2 challenge of a photo identification law); LULAC v. Perry, 548 U.S. 399 (2006) (LULAC

challenged Texas’ redistricting plan under Section 2); Johnson v. DeGrandy, 512 U.S. 997

(1994) (State conference of NAACP Branches sued on a voter dilution challenge under Section

2); Chisom v. Roemer, 501 U.S. 380 (1991) (Louisiana Voter Registration/Education Crusade

challenged voter dilution under Section 2); LULAC v. City of Boerne, 675 F.3d 433 (5th Cir.

2012) (LULAC challenged vote dilution under Section 2); Veasey v. Perry, 29 F. Supp. 3d 896

(2014) (Six organizations challenge Texas’s voter identification law under Section 2).

29

linked to social and historical conditions that have or currently produce

discrimination against members of the protected class.” Veasey v. Abbott, 830 F.3d

216, 244 (5th Cir. 2016).5 The first part of this two-part framework requires the Court

look at the nature of the burden imposed and whether it denies or abridges the ability

of members of a protected class the same opportunity to participate in the political

process as other members of the electorate. The second part of the framework requires

the Court look at factors enumerated by the Senate (the “Gingles factors”)* to examine

the causal link between the burden alleged by Plaintiffs and social and historical

conditions produced by discrimination. Id.

5 The Secretary suggests that we analyze Plaintiffs’ Section 2 disparate impact claim

under the three-part framework enunciated in LULAC No. 4434 v. Clements, 999 F.2d 831,

849 (5th Cir. 1993). This suggestion is inapposite, as it deals not with a vote denial or

abridgement claim, but rather a vote dilution claim. The Fifth Circuit established the

framework for vote denial or abridgement claims in Veasy v. Abbott, 830 F.3d 216 (5th Cir.

2016).

6 These are also often referred to as the “Senate Factors” and include, but are not

limited to: (1) the extent of any history of official discrimination in the state or political

subdivision that touched the right of the members of the minority group to register, to vote,

or otherwise to participate in the democratic process; (2) the extent to which voting in the

elections of the state or political subdivision is racially polarized; (3) the extent to which the

state or political subdivision has used unusually large election districts, majority vote

requirements, anti-single shot provisions, or other voting practices or procedures that may

enhance the opportunity for discrimination against the minority group; (4) if there is a

candidate slating process, whether the members of the minority group have been denied

access to that process; (5) the extent to which members of the minority group in the state or

political subdivision bear the effects of discrimination in such areas as education,

employment, and health, which hinder their ability to participate effectively in the political

process; (6) whether political campaigns have been characterized by overt or subtle racial

appeals; (7) the extent to which members of the minority group have been elected to public

office in the jurisdiction. Thornburg v. Gingles, 478 U.S. 30, 45 (1986) (quoting from S. Rep.

97-417, at 30, 1982 U.S.C.C.A.N. 208). Additional factors that in some cases have probative

value as evidence to establish a violation of the Voting Rights Act are: (1) whether there is a

significant lack of responsiveness on the part of elected officials to the particularized needs

of the members of the minority group; (2) whether the policy underlying the state’s use of

such voting qualification, prerequisite to voting, or standard, practice, or procedure is

tenuous. Thornburg, 478 U.S. at 36-37.

30

Plaintiffs allege that HB 25 will have discriminatory results on African-

American and Hispanic Texans (Dkt. No. 1 at 42). Plaintiffs argue that

African-American and Hispanic Texans disproportionately utilize STV compared to

non-minority voters (Dkt. No. 1-5 at 3-14). The elimination of STV will thus have a

greater effect on wait times in precincts with the highest minority populations

because those precincts have the highest number of voters who would otherwise use

the STV option.

Disparate impact, however, is not the entirety of a discriminatory results

claim. Plaintiffs are required to show that the challenged law interacts with social

and historical conditions of discrimination and thus causes inequalities in political

opportunities. Here, taking the plausible disparate impact of HB 25 into

consideration along with the issues arising from the Gingles factors, which Plaintiffs

have pled in their expert reports (Dkt. No. 1-4 at 19-101), Plaintiffs plausibly show

that HB 25 interacts with social and historical conditions to decrease the

opportunities of African-American and Hispanic voters to cast a ballot.

There is no serious dispute that the State of Texas, like many states, has a

regrettable history of discriminatory policies and practices designed to suppress

minority voters. While Plaintiffs’ expert report indicates that African-American and

Hispanic Texans have recently received electoral successes, it also outlines a history

of discrimination that shows African-American and Hispanic Texans have, on

average, substantially fewer economic resources than white Texans, substantially

lower levels of educational attainment than white Texans, and more difficult access

31

to polling locations (Dkt. No. 1-4 at 9-16). Plaintiffs’ expert report notes that

minorities are more likely to get infected due to the increased possibility for exposure

at their workplaces, and once infected, experience worse outcomes (Dkt. No. 1-3 at 5-

6). Moreover, the economic constraints African-American and Hispanic Texans face

have, on average, only become more acute over the course of the pandemic and its

accompanying economic downturn. See Hugo Lopez, Abby Budiman & Lee Rainie,

Financial and Health of COVID-19 Vary Widely by Race and Ethnicity, Pew Research

Center: Fact Tank (May 5, 2020, 2:00 PM), https://pewrsr.ch/2ExuUy2.

The Court finds that Plaintiffs make a plausible showing that eliminating STV

would impose a discriminatory burden on African-American and Hispanic voters and

create comparatively less opportunities for these voters to participate in the political

process. Further, Plaintiffs plausibly show that HB 25 is linked to historical

socioeconomic experiences of discrimination, which have been exacerbated by the

current public health crisis. Accordingly, Plaintiffs’ Section 2 Discriminatory Results

claim must survive Defendant’s Motion to Dismiss.

C. Plaintiffs’ Claim of Intentional Discrimination

Plaintiffs’ fourth claim alleges that HB 25 is the product of intentional racial

discrimination in violation of Section 2 of the Voting Rights Act, and the Fourteenth

and Fifteenth Amendments of the United States Constitution.

Here, Plaintiffs must state sufficient facts to support a finding of racially

discriminatory intent. In determining racially discriminatory intent, the Court

considers whether the impact of the decision bears more heavily on one racial group

32

than another; contemporaneous statements by the decisionmakers; the historical

background of the decision; the sequence of events leading up to the decision; and

whether the decision departs from the normal practice. Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977). In considering a discriminatory

intent claim under Section 2, the Court considers the Arlington-Heights factors along

with the Gingles factors. United States v. Brown, 561 F.3d 420, 433 (5th Cir. 2009);

Terrazas v. Clements, 581 F. Supp. 1329, 1348, 1847 (N.D. Tex. 1984).

Defendants contest that Plaintiffs are required to show that discriminatory

purpose was the but-for cause of HB 25’s passing. This is simply not so. Racial

discrimination need not be the primary purpose of the official act for a violation to

occur. Brown, 561 F.3d at 433. So long as Plaintiffs plausibly show that racial

discrimination was one of the motivating factors behind HB 25, their complaint

survives a motion to dismiss. Jd.

Here, Plaintiffs’ complaint clearly alleges specific facts relevant to the

Arlington Heights and Gingles factors (Dkt. No. 1-4 at 16-101). Traditionally, bills

that make changes to Texas electoral law are heard before the Senate State Affairs

committee (Dkt. No. 1 at 15). Here, the legislator presented this bill to the Senate

Business & Commerce Committee (id. at 15-16). Additionally, the author of HB 25,

contrary to customary practice, did not take a position on proposed amendments (id.).

Plaintiffs’ complaint also shows that despite requests and concerns from legislators

and members of the community about the potential effects HB 25 could have on

minority voters, proponents of HB 25 did not engage with those concerns (id. at 48).

33

While Defendants may dispute the significance of these facts, that is a matter

for trial which cannot be disposed of in the context of a motion to dismiss. The

Secretary's Motion to Dismiss is denied with respect to her challenge to the claims of

intentional discrimination under Section 2 of the Voting Rights Act, and the

Fourteenth and Fifteenth Amendments.

D. Plaintiffs’ Viewpoint Discrimination Claim

Finally, Plaintiffs claim that HB 25 was passed with the intent to discriminate

on the basis of partisan affiliation (Dkt. No. 1 at 44). Specifically, that HB 25 was

passed to discriminate against voters who support the Democratic Party to gain a

partisan advantage in future elections (id.). Plaintiffs contend that to accomplish this

objective, the legislature identified groups of voters who are likely to vote for

Democratic candidates and then passed HB 25 to frustrate those voters’ access to the

ballot.

Plaintiffs derive this “partisan fencing claim” from Carrington v. Rash, 380

U.S. 89 (1965), a case in which the Supreme Court invalidated a provision in the

Texas Constitution prohibiting members of the armed forces from voting if they

moved to Texas during their service. “Fencing out” a sector of the population from the

franchise because of the way they vote, the Court held, “is constitutionally

impermissible. Jd. at 94.

The Court finds that this theory does not give Plaintiffs a cause of action. No

court in this district has established a framework for analyzing this claim, yet other

courts that have grappled with the scope of a partisan fencing claim have concluded

34

that “[i]t does not appear to create a separate cause of action but may be a useful

analytical tool in evaluating First Amendment and Equal Protection cases.” Lee v.

Virginia State Bd. of Elections, 188 F. Supp. 3d 577, 609 (E.D. Va. 2016); One Wis.

Inst., Inc. v. Thomsen, 198 F. Supp. 8d 896 (W.D. Wis. 2016); Ohio Organizing

Collaborative v. Husted, 189 F. Supp. 3d 708 (S.D. Oh. 2016). Supporting this position

is the fact that courts that have applied Carrington have done so to analyze state

laws that explicitly forbid a specific category of voters from casting a ballot—which

HB 25 does not do. See, e.g., Cipriano v. City of Houma, 395 U.S. 701, 704-06 (1969)

(finding unconstitutional a state law that permits only property taxpayers to vote in

certain elections and rejecting the argument that the law is justified by the interest

in limiting the franchise to those who have a special pecuniary interest or will be

directly affected by the election); Evans v. Cornman, 398 U.S. 419, 423-25 (1970)

(applying heightened scrutiny and finding an equal protection violation where

Maryland prohibited individuals residing on a federal reservation or enclave within

the state from registering to vote); Dunn v. Blumsiein, 405 U.S. 330, 355 (1972)

(finding residential duration requirements for voter registration did not pass

heightened scrutiny).

Carrington and its progeny do not create a cause of action here and Plaintiffs

fail to argue that HB 25 burdens their rights to free expression or association as

Democrats under the traditional First Amendment framework. Plaintiffs’ claim that

HB 25 was enacted to suppress the votes of Democratic voters, therefore, fails.

35

Defendant’s Motion to Dismiss is granted as to Plaintiffs’ Viewpoint Discrimination

claim.

E. Laches Do Not Bar Plaintiffs’ Claims

The Secretary argues that the equitable doctrine of laches bar Plaintiffs’

claims, because they are untimely brought. Specifically, the Secretary contends that

because HB 25 was signed in June 2017, Plaintiffs should have challenged the law

then. This argument is without merit, because there was no unreasonable delay in

bringing this challenge. Though signed in June 2017, HB 25 was not intended to go

into effect until the November 2020 election. Plaintiffs brought their first suit in

March, which was dismissed for lack of jurisdiction. It is only natural that Plaintiffs

would bring a new challenge after witnessing the difficulties of administering an

election in the midst of a pandemic, learning how this disease could affect the health

of voters, and recognizing the extent to which the pandemic has exposed and

exacerbated pre-existing socioeconomic inequalities.

IV. Plaintiffs’ Motion for Preliminary Injunction

Having addressed the Secretary's 12(b)(1), 12(b)(3), and 12(b)(6) arguments

and finding that many of Plaintiffs’ claims must survive, the Court finally turns to

Plaintiffs’ request for a preliminary injunction (Dkt No. 5). Plaintiffs seek a

preliminary injunction preventing the Secretary from implementing HB 25 (id.).

Requests for preliminary injunctions are extraordinary remedies designed to protect

the status quo pending final resolution of a lawsuit. Here, because both parties have

presented extensive briefing in support of their positions, the Court finds that a

36

hearing would be largely duplicative and add little, if any, value. Fed. R. Civ. P.

65(a)(1).

Issuance of a preliminary injunction falls within the sound discretion of the

Court. To secure a preliminary injunction, Plaintiffs must establish: (1) a substantial

likelihood that they will prevail on the merits; (2) a substantial threat that they will

suffer irreparable injury if the injunction is not granted; (8) their substantial injury

outweighs the threatened harm to the party to be enjoined; and (4) granting the

preliminary injunction will not disserve the public interest. Voting for Am., Inc. v.

Steen, 732 F.3d 382, 386 (5th Cir. 2018) (citing Texas Med. Providers Performing

Abortion Servs. v. Lakey, 677 F.8d 570, 574 (5th Cir. 2012)); Speaks v. Kruse, 445 F.3d

396, 399-400 (5th Cir. 2006).

In response to Plaintiffs’ motion, the Secretary argues that laches bar

Plaintiffs’ claims (Dkt. No. 29 at 14). The Court has already concluded that laches do

not bar Plaintiffs’ claims because there was no harmful and undue delay.

Additionally, the Secretary invokes Republican National Commission v. Democratic

National Commission, 140 S. Ct. 1205, 1207 (2020), for the proposition that “lower

federal courts should not ordinarily alter the election rules on the eve of an election”

(Dkt. No. 29 at 138—14). The injunction issued by the district court in Republican

National Commission was issued five days before a primary election and addressed

the question of whether absentee ballots could be mailed and postmarked after

election day. The Supreme Court found that this preliminary injunction

fundamentally altered the nature of the election, because the injunction required a

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subsequent order further enjoining the public release of any election results for six

days after election day. Republican Nat Comm’n, 140 S. Ct. at 1207. Here, the

requested injunction would be issued far earlier, would not extend any deadlines, and

would not create the sort of confusion Republican National Commission frowns upon.

Significantly, the requested injunction would not impose such an onerous burden on

election officials and merely allows a century-old practice to remain in place for one

more election. Yes, we are nearing the election, but we are not so close as to deny

Plaintiffs the ability to raise a challenge seeking to maintain the status quo. While

states have a strong interest in their ability to enforce state election law, the public

has a “strong interest in exercising the ‘fundamental political right’ to vote.” Purcell

v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Dunn v. Blumstein, 405 U.S. 330, 336

(1972)). The Court must react to burdens imposed on Constitutional rights, especially

during this public health crisis.

The Secretary has also filed a Motion to Strike the Declaration of Dan Wallach

or, in the Alternative, for Leave to File a Sur-Reply (Dkt. No. 39). She argues that

Wallach’s declaration, which was attached to Plaintiffs’ reply in support of their

motion for a preliminary injunction, should be struck because it constitutes untimely

“new evidence.” A reply brief is generally limited to addressing matters presented in

a motion and response. See AAR, Inc. v. Nunez, 408 F. App’x 828, 830 (5th Cir. 2011)

(A reply brief “is not the appropriate vehicle for presenting new arguments or legal

theories to the court.”); see also S.D. Tex. R. 7.7 (“If a motion or response requires

consideration of facts not appearing of record, proof by affidavit or other documentary

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evidence must be filed with the motion or response.”). The Court has discretion,

however, “on its own motion or upon application” to “request or permit additional

authority or supporting material.” S.D. Tex. R. 7.8. Here, Plaintiffs do not present

new arguments or legal theories through Wallach’s declaration. Rather, Wallach’s

declaration is specifically directed at and responsive to the Secretary’s response,

which argues that programming the voting machines is unduly burdensome (see Dkt.

No. 29 at 13; Dkt. No. 30-1 at 2-5). The admissibility of the declaration is further

supported by local rule 7.8. Because this is not a situation in which a completely novel

issue was raised for the first time in a reply—the Secretary herself brought up the

process of programming the voting machines and had ample opportunity to brief that

issue in her response to Plaintiffs’ request for an injunction—there is no need to give

the Secretary an opportunity to respond before the Court rules on the injunction.

Accordingly, the Secretary's Motion to Strike Wallach’s Declaration or File a

Sur-Reply is denied.”

We now turn to the merits of Plaintiffs’ request for an injunction. First, having

here found that almost all of Plaintiffs’ claims survive past the Secretary's Rule 12

challenges, the Court now finds that Plaintiffs are likely to succeed on the merits of

their undue burden claims. “The right to vote is protected in more than the initial

allocation of the franchise.” Bush v. Gore, 531 U.S. 98, 104 (2000). While there is no

7 In any event, because of the importance of the right at stake and extensive

experience Texas election administrators’ have with straight ticket voting, Wallach’s

declaration had little bearing on the Court’s analysis of whether a preliminary injunction

should issue.

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“litmus test” to “separate valid from invalid voting regulations courts must weigh the

burden on voters against the state’s asserted justifications and ‘make the “hard

judgment” that our adversary system demands.” Obama for Am. v. Husted, 697 F.3d

423, 429 (6th Cir. 2012) (quoting Crawford v. Marion Cnty. Election Bd., 553 U.S.

181, 190 (2008)).

The Court finds that HB 25, especially as exacerbated by the ongoing

pandemic, places a greater than minimal burden on Texans’ right to vote and right

to associate. HB 25 eliminates the STV option on ballots. For almost 100 years prior

to the adoption of HB 25, Texans could mark a single bubble to vote for all the

candidates affiliated with that particular party. By eliminating that option, Texans

will have to make individual selections for the candidates they wish to vote for, and

as such, the amount of time it will take to complete a ballot will increase. This in

turn, will cause incrementally longer wait times and congestion at the polls (see Dkt.

No. 6-2 at 10-28). As demonstrated by the administration of the July runoff elections,

the challenges of running an election in the midst of a pandemic are significant. This

pandemic limits the counties’ ability to mitigate the longer wait times caused by HB

25: the number of voting machines cannot be increased without risking voters’ safety,

the number of polling locations is unlikely to be increased, and even if the number of

polling locations can be increased, the national shortage of poll workers makes an

increase in polling locations unlikely. Access to mail-in ballots continues to be

restricted and curbside voting is not intended for mass usage.’ The longer voters

8 To date, at least 21 states have modified voting procedures for the November general

election in light of the COVID-19 pandemic: six states have expanded absentee voting

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stand in line, the greater the risk that they contract COVID-19. Texans already wait

a long time to exercise their right to vote (Dkt. No. 6-3 at 8, 11, 138-14). Increasing

wait times at the polls further could cause more Texans to leave polling place lines

before they have exercised their fundamental right to vote (d.). Forcing Texas voters

to stand in longer lines and increasing their exposure to a deadly virus burdens the

right to vote.

The Secretary argues that early voting and mail-in voting are available to

Texan voters, and thus any failure to overcome the burden to voting on Election Day

is an individual choice that forecloses Plaintiffs’ request for relief. This argument is

meritless. See United States v. Marengo Cnty. Com’n, 731 F.2d 1546, 1556 (11th Cir.

1984) (rejecting the argument that Section 2 only ensures access to the political

process without formal barriers); see also Kirskey v. Bd. of Supervisors of Hinds Cnty.,

554 F.2d 139, 145 (6th Cir. 1977) (en banc) (failure to register cannot be considered a

matter of voter apathy without specific supporting evidence). An effective right to

participate in the electoral process, regardless of race, color, ethnicity, or political

affiliation, cannot be denied or abridged on election day.

The Secretary’s stated reasons for HB 25 are underwhelming, especially when

weighed against the risk of disenfranchisement and the risk to voters’ health. The

legislature’s desire to encourage a more informed electorate by requiring individual

eligibility, eight states are automatically sending absentee ballot applications to all voters, □

two states are automatically sending absentee ballots to all voters in the general election. See

Jerrick Adams, States Begin Modifying General Election Voting Procedures in Response to

COVID-19 Outbreak, Ballotpedia (Jul. 29, 2020, 3:18 PM)

https:/news.ballotpedia.org/2020/07/29/states-begin-modifying-general-election-voting-

procedures-in-response-to-covid-19-outbreak/.

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selections of candidates on the ballot is not supported by any evidence, only by a belief

(Dkt. No. 6-5 at 9-10). Eliminating STV does not prevent voters from casting a ballot

exclusively for Democrats or exclusively for Republicans. Keeping the STV option

during the November general election does not prohibit voters from making

individual selections and splitting their ticket. It is equally unclear to the Court how

requiring voters to spend more time voting and more time waiting in line at polling

places, in turn, increasing voters’ potential exposure to a deadly virus, will encourage

more qualified candidates and better campaigns. Finally, the Secretary has not

demonstrated how eliminating STV will reduce voter confusion and unintentional

roll-off. In fact, eliminating a practice that Texan voters have been

accustomed to for 100 years is more likely to cause confusion among voters

than eliminating it would.

Accordingly, because the State’s interests do not outweigh the burdens

imposed by HB 25, Plaintiffs are likely to succeed on the merits of their undue burden

claims.9

Plaintiffs argue they will be irreparably injured if an injunction is not granted

and their harm outweighs any harm to the Defendant. Voting is a constitutional right

and the violation of a constitutional right for even the shortest period constitutes an

irreparable injury which justifies granting the motion for preliminary injunction.

Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). By

causing mass lines at the polls and increasing the amount of time voters are exposed

9 Plaintiffs only need to show likelihood of success on one claim to obtain a preliminary

injunction. Accordingly, the Court will not address Plaintiffs remaining claims.

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to COVID-19, HB 25 will cause irreparable injury to Plaintiffs and ALL Texas voters

in the upcoming general election.

Plaintiffs’ substantial injury outweighs any potential harm to the Secretary,

should she be enjoined from enforcing HB 25. The Secretary and the 254 county

election officials have already begun distributing paper ballots without an STV option

(Dkt. No. 29 at 7). They have also programmed the software on the electronic voting

machines that does not accommodate straight ticket voting (id.). But the question

before the Court does not affect the mail-in ballots distributed to the limited number

of Texans eligible to vote by mail. The question before the Court is HB 25’s effect on

those who, by state law, may only vote in person at the polls. The Court is not

convinced that the burden on the state to recalibrate its machines, all of which have

been used in the past with an STV option and which will be programmed and operated

by officials familiar with the STV option, will be as onerous as Texas claims.

Regardless, weighed against the deprivation HB 25 is likely to cause, the Court would

still find that the substantial injury to the Plaintiffs is outweighed by the

inconvenience to the Secretary. Re-printing paper ballots for in-person voters is also

feasible and would, according to the Secretary’s expert, take little more than a week

(Dkt. No. 30-1 at 3). The substantial injury to Plaintiffs is outweighed by the

inconveniences resulting to the Secretary in making the necessary changes to allow

Texan voters to use STV.

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Granting this injunction is in the public’s interest. Texas’ rules around voting

during the pandemic have been perplexing. Administering in-person voting the same

way it has been administered for almost 100 years is not about a mere convenience

to voters, it is about running an efficient electoral process that guarantees Texans a

more effective opportunity to cast a ballot in a time where any additional time spent

in line endangers the safety of voters, poll workers, and others not at the polls. This

is a matter of utmost importance to the constitutional rights of Texan citizens, and in

this most extraordinary time, the health of the Nation. The Court finds that a

preliminary injunction is proper.

V. Conclusion

For the foregoing reasons, Defendant's Motion to Dismiss (Dkt. No. 26) is

GRANTED IN PART and DENIED IN PART; Defendant’s Motion to Strike the

Declaration of Dan Wallach (Dkt. No. 39) is DENIED; and Plaintiffs’ Request for a

Preliminary Injunction (Dkt. No. 5) is GRANTED. Defendant, her officers, agents,

servants, employees, successors, and all persons in active concert or participation

with them are ENJOINED from taking any action to implement or enforce HB 25.

This Preliminary Injunction shall take effect immediately and shall remain in effect

pending a final judgment in this action or further order of this Court.

It isso ORDERED.

SIGNED September 25, 2020.

Marina Garcia Marmolejo

United States District Judge

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