La Union del Pueblo Entero v. Abbott

Case: 24-50783 Document: 258-1 Page: 1 Date Filed: 02/12/2026

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 24-50783 February 12, 2026

____________

Lyle W. Cayce

La Union del Pueblo Entero; Southwest Voter Clerk

Registration Education Project; Mexican American Bar

Association of Texas; Texas Hispanics Organized for

Political Education; JOLT Action; William C.

Velasquez Institute; Fiel Houston, Incorporated;

Friendship-West Baptist Church; Texas Impact; James

Lewin,

Plaintiffs—Appellees,

versus

Gregory W. Abbott, in his official capacity as Governor of Texas;

Warren K. Paxton, in his official capacity as Attorney General of Texas;

State of Texas; Jane Nelson, in her official capacity as Texas

Secretary of State; Harris County Republican Party; Dallas

County Republican Party; National Republican

Senatorial Committee,

Defendants—Appellants,

Republican National Committee

Movant—Appellant,

______________________________

OCA-Greater Houston; League of Women Voters of

Texas,

Plaintiffs- Appellees,

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versus

Ken Paxton, Texas Attorney General,

Defendant—Appellant,

______________________________

LULAC Texas; Texas Alliance for Retired Americans;

Texas AFT; Voto Latino,

Plaintiffs—Appellees,

versus

Ken Paxton, in his official capacity as the Texas Attorney General,

Defendant—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 Jones and Engelhardt, Circuit Judges, and Summerhays,

District Judge. *

Edith H. Jones, Circuit Judge:

Deeply concerned about “the vicious arts by which elections are too

often carried,” The Federalist No. 10 (James Madison), the Framers of the

Constitution supported election provisions, such as the Electoral College,

that aimed to erect “every practicable obstacle . . . to cabal, intrigue, and

_____________________

*

District Judge for the Western District of Louisiana, sitting by designation.

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corruption,” The Federalist No. 68 (Alexander Hamilton). In accordance

with a constitutional design that aspires to maintain free and secure elections,

Texas enacted S.B. 1 in 2021. The statute curtails various activities that

incentivize vote fraud and intimidation. Its provisions are being serially

litigated before the district court for reasons that are not obvious considering

the similarity of parties, issues, and witnesses. Before this panel is a provision

to prevent professionally conducted ballot harvesting. Tex. Elec. Code

§ 276.015. The district court erred in facially striking down this provision

and entering an injunction against state officials in violation of their sovereign

immunity. Accordingly, the district court’s judgment is REVERSED.

I. Background

Following the electoral chaos caused by the COVID pandemic,

Texas modernized its election security laws. S.B. 1 aimed to make “the

conduct of elections . . . uniform and consistent throughout [the]

state[,] . . . reduce the likelihood of fraud in the conduct of elections, protect

the secrecy of the ballot, promote voter access, and ensure that all legally cast

ballots are counted.” Tex. Elec. Code § 1.0015. Because “the potential

and reality of fraud is much greater in the mail-in ballot context than with in-

person voting,” S.B. 1 added additional election integrity provisions to

prevent mail ballot fraud. Veasey v. Abbott, 830 F.3d 216, 239 (5th Cir. 2016)

(en banc). Mail ballots are more susceptible to fraud because they render

election workers incapable of knowing what happens to the ballot once it is

mailed out. Due to the inherent vulnerability of mail ballots, “[f]raud is a real

risk that accompanies mail-in voting.” Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647, 686, 141 S. Ct. 2321, 2348 (2021). In particular, “[v]ote buying

schemes are far more difficult to detect when citizens vote by mail.” Id. at

685, 141 S. Ct. at 2347 (quoting Report of the Comm’n on Fed. Election

Reform, Building Confidence in U.S. Elections 46 (Sept. 2005)).

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One particularly common form of “mail ballot fraud” is known as

“vote harvesting.” Vote harvesting describes a process whereby paid

election operatives “generate applications for mail ballots in . . . targeted

precincts.” Operatives often go door-to-door, talk to voters, and get them to

sign up to vote by mail. More nefariously, vote harvesting can also be

accomplished by paid operatives forging applications for voters without the

voters’ knowledge or consent. Later, once the voters receive the mail ballots

that were requested by canvassing or by forgery, the same partisan operatives

return to collect the voters’ completed mail ballots. As part of the ballot

collection process, the partisan operatives ensure that the ballots were cast

for a particular candidate.

Unsurprisingly, mail-in voting is a rich field for fraud. Between 2004

and 2021, 72% of all election prosecutions undertaken by the Texas Attorney

General involved mail ballot fraud. “[I]t should go without saying that a State

may take action to prevent election fraud.” Id. at 686, 141 S. Ct. at 2348.

Faced with evidence of mail ballot fraud, Texas enacted S.B. 1, which

contained multiple provisions to address mail ballot fraud.

Section 276.015 of the Texas Election Code defines “vote harvesting

services” as “in-person interaction with one or more voters, in the physical

presence of an official ballot or a ballot voted by mail, intended to deliver

votes for a specific candidate or measure.” Tex. Elec. Code

§ 276.015(a)(2). A person is guilty of vote harvesting if he “knowingly

provides or offers to provide vote harvesting services in exchange for

compensation or other benefit.” Id. § 276.015(b). The illegal vote harvesting

interaction must also “occur in the presence of the ballot or during the voting

process,” “directly involve an official ballot or ballot by mail,” be

“conducted in-person with a voter,” and be “designed to deliver votes for or

against a specific candidate or measure.” Id. § 276.015(e).

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The plaintiffs, a group of organizations engaged in get-out-the-vote

efforts that could be construed as illegal vote harvesting, have attacked many

aspects of S.B. 1. Previously, this court found that at least two of the plaintiff

organizations have standing to challenge the vote harvesting statute and held

that it was not preempted by the Voting Rights Act. La Union Del Pueblo

Entero v. Abbott, 151 F.4th 273, 283, 290–93 (5th Cir. 2025).

In this case, plaintiffs sought to enjoin section 276.015 of the Texas

Election Code as impermissibly vague under the Due Process Clause of the

Fourteenth Amendment and an impermissible content-based restriction on

political speech under the First Amendment. The district court ruled for the

plaintiffs and enjoined the Texas Attorney General, the Texas Secretary of

State, and the district attorneys of Travis County, Dallas County, Hidalgo

County, and the 34th Judicial District from enforcing it. Additionally, the

Attorney General was enjoined from even “investigat[ing] potential

violations of [Texas Election Code] § 276.015,” and the DAs were enjoined

from deputizing the Attorney General to prosecute violations of the vote

harvesting statute. However, this court stayed the district court’s injunction

pending appeal. La Union Del Pueblo Entero v. Abbott, 119 F.4th 404, 407 (5th

Cir. 2024).

The state defendants timely appealed.

II. Standard of Review

“The standard of review for a bench trial is well established: findings

of fact are reviewed for clear error and legal issues are reviewed de novo.”

Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000).

Whether a statute violates the First Amendment’s protection of free speech

“is a mixed question of law and fact” and is reviewed de novo. Baby Dolls

Topless Saloons, Inc. v. City of Dall., 295 F.3d 471, 479 (5th Cir. 2002) (quoting

Int’l Soc’y for Krishna Consciousness of New Orleans, Inc. v. City of Baton

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Rouge, 876 F.2d 494, 496 (5th Cir. 1989)). The district court’s decisions on

sovereign immunity and standing are reviewed de novo. Tex. All. for Retired

Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022).

III. Discussion

A. Facial Challenge

As an initial matter, the district court erred in granting plaintiffs’

facial, pre-enforcement challenge and enjoining this provision before it ever

went into effect. This case illustrates the precise reasons why facial

challenges are “generally disfavor[ed].” Voting for Am., Inc. v. Steen, 732

F.3d 382, 386 (5th Cir. 2013). Facial challenges too often degenerate into

conjecture rather than rulings on concrete controversies. Devoid of any

record evidence about how Texas will enforce the vote harvesting prohibition

or how Texas courts may interpret the statute, the “factually barebones

record[]” consists of nothing more than vague hypotheticals conjured up by

the district court. Sabri v. United States, 541 U.S. 600, 609, 124 S. Ct. 1941,

1948 (2004).

Shoddy hypothetical analysis is not what our federalist system

requires. 1 “Under the federalist structure of the United States, the states are

responsible for regulating the conduct of their elections.” Voting for Am., 732

F.3d at 387. A federal district court’s intrusion on a state’s constitutional

_____________________

1

The district court gave an interview to the Wall Street Journal explaining how he

had used artificial intelligence as an adjunct to his work on some aspects of a case

“involving Texas[] election law.” Erin Mulvaney, How Judges Are Using AI to Help Decide

Your Legal Dispute, Wall Street Journal, Jan. 6, 2026, https://www.wsj.com/tech/ ai/how-

ai-could-help-decide-your-next-legal-dispute-9cb12517?st=vNF5JG. Whether it was this

case is uncertain. However, as one distinguished U.S. Senator has commented, AI “must

not be a substitute for legal judgment,” 171 Cong. Rec. S7751 (daily ed. Oct. 27, 2025)

(statement of Sen. Grassley), nor must the public perceive that federal judges outsource

our judgment to AI tools.

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prerogative cannot be supported by mere speculation. A facial challenge

must not “go beyond the statute’s facial requirements and speculate about

‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 450, 128 S. Ct. 1184, 1190 (2008).

As is often the temptation with facial challenges, the district court

transgressed “the fundamental principle of judicial restraint that courts

should neither anticipate a question of constitutional law in advance of the

necessity of deciding it nor formulate a rule of constitutional law broader than

is required by the precise facts to which it is to be applied.” Id. at 450, 128 S.

Ct. at 1191 (internal quotation marks omitted) (quoting Ashwander v. Tenn.

Valley Auth., 297 U.S. 288, 346–47, 56 S. Ct. 466, 483 (1936) (Brandeis,

J., concurring)). Proper judicial restraint requires a federal court to

“construe the provisions to avoid a constitutional conflict.” Voting for Am.,

732 F.3d at 387 (quoting Voting for Am., Inc. v. Andrade, 488 F. App’x 890,

895 (5th Cir. 2012) (per curiam)). “[A] democratically enacted statute” is

entitled to “‘every reasonable construction . . . in order to save [it] from’”

being held facially unconstitutional. Id. (quoting Nat’l Fed'n of Indep. Bus. v.

Sebelius, 567 U.S. 519, 563, 132 S. Ct. 2566, 2594 (2012)). In a facial challenge

to a state election statute, a federal court must grant “deference to the

executive and judicial officials who are charged with implementing it” and

determine whether it can be implemented “in such a way as to

eliminate . . . the perceived threat to the First Amendment.” Wash. State

Grange, 552 U.S. at 456, 128 S. Ct. at 1194. This deferential analysis requires

a court to grant great weight to “any limiting construction that a state court

or enforcement agency has proffered.” Id. (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 795–96, 109 S. Ct. 2746, 2756 (1989)). Anything less

than this deferential analysis “short circuit[s] the democratic process by

preventing laws embodying the will of the people from being implemented in

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a manner consistent with the Constitution.” Voting for Am., 732 F.3d at 387

(quoting Wash. State Grange, 552 U.S. at 451, 128 S. Ct. at 1191).

It is hard to sustain a facial challenge against a democratically enacted

state law. “With the exception of First Amendment cases, a facial challenge

will succeed only if the plaintiff establishes that the act is invalid under all of

its applications.” Id. Even in the First Amendment context, the burden to

sustain a facial challenge is “daunting.” Id. In a facial challenge under the

First Amendment, a state law is unconstitutional only if “a substantial

number of its applications are unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.” Id. (quoting United States v. Stevens, 559

U.S. 460, 473, 130 S. Ct. 1577, 1587 (2010)).

The district court’s vagueness and First Amendment analyses equally

suffered from the infirmities attendant to largely hypothetical facial

challenges to the instant statutory provision.

B. Void-for-Vagueness

The district court here concluded, on a barren record, that § 276.015

is unconstitutionally vague. 2 The Due Process Clause of the Fourteenth

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2

Because there are no concrete examples of enforcement in the record, the only

evidence available is testimony from two state officials with differing interpretations of the

statute. Former Election Division Director Keith Ingram opined that bus fares paid for

volunteer workers would not be illegal compensation or benefit. In contrast, Texas’s chief

voter fraud prosecutor Jonathan White testified that he would need to conduct legal

research to answer that question. The district court held that the existence of divergent

views of what counts as compensation “effectively concedes” that the statute is vague and

unconstitutional. That is not so. A criminal statute is not necessarily impermissibly vague

even when “trained lawyers may find it necessary to consult legal dictionaries, treatises,

and judicial opinions before they may say with any certainty what some statutes may

compel or forbid.” Rose v. Locke, 423 U.S. 48, 50, 96 S. Ct. 243, 244 (1975) (per curiam).

In any event, divergent views at the margins of statutory applicability do not demonstrate

that a provision is unconstitutionally vague “in all of its applications.” Vill. of Hoffman

Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495, 102 S. Ct. 1186, 1191 (1982).

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Amendment requires a statute to give “ordinary people . . . fair notice of the

conduct a statute proscribes.” Sessions v. Dimaya, 584 U.S. 148, 155–56, 138

S. Ct. 1204, 1212 (2018) (internal quotation marks omitted). But a statute

can be “perfectly constitutional” even if it “use[s] imprecise terms.” Id. at

159, 138 S. Ct. at 1214; see also Johnson v. United States, 576 U.S. 591, 604, 135

S. Ct. 2551, 2561 (2015) (“[T]he law is full of instances where a man’s fate

depends on his estimating rightly” what the statute requires of him. (quoting

Nash v. United States, 229 U.S. 373, 377, 33 S. Ct. 780, 781 (1913))). A

statutory term “is not unconstitutional if it has some ‘common-sense core of

meaning . . . that criminal juries should be capable of understanding.’”

Tuilaepa v. California, 512 U.S. 967, 973, 114 S. Ct. 2630, 2635–36 (1994)

(quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S. Ct. 2950, 2959 (1976)

(White, J., concurring in judgment)). Indeed, “[c]ourts must indulge a

presumption of constitutionality and carefully examine a statute before

finding it unconstitutional,” even when considering “extremely broad”

criminal statutes that carry “harsh” penalties. United States v. Anderton, 901

F.3d 278, 283 (5th Cir. 2018).

Prevailing in a void-for-vagueness challenge requires a plaintiff to

establish that the law is vague, “not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible normative

standard, but rather in the sense that no standard of conduct is specified at

all.” Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688

(1971). Therefore, a challenger bears the weighty burden of demonstrating

that the law is “impermissibly vague in all of its applications.” McClelland v.

Katy Indep. Sch. Dist., 63 F.4th 996, 1013 (5th Cir. 2023) (quoting Home

Depot, Inc. v. Guste, 773 F.2d 616, 627 (5th Cir. 1985)). The plaintiffs’

vagueness challenge fails this threshold test. As the district court conceded,

applying the statute to “prevent paid partisans from haranguing Texas

citizens while they fill out their mail ballots” is not vague or unconstitutional.

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Finally, a void-for-vagueness analysis usually “examine[s] the

complainant’s conduct before analyzing other hypothetical applications of

the law.” Vill. of Hoffman Ests., 455 U.S. at 495, 102 S. Ct. at 1191. If a

challenger engages in “conduct that is clearly proscribed,” he is barred from

pursuing a void-for-vagueness challenge based on hypothetical applications

of the law. Id. The district court inverted this process with its facial,

hypothetical approach.

In light of these principles, we examine the district court’s

conclusions that the terms “compensation or other benefit” and “physical

presence” in Section 276.015 are unconstitutionally vague. They are not.

1. “Compensation or Other Benefit”

The statute prohibits “knowingly provid[ing] or offer[ing] to provide

vote harvesting services in exchange for compensation or other benefit” and

“knowingly provid[ing] or offer[ing] to provide compensation or other

benefit to another person in exchange for vote harvesting services.” Tex.

Elec. Code § 276.015(b)–(c). In contrast, the statute does not apply to

“an activity not performed in exchange for compensation or a benefit.” Id.

§ 276.015(e)(1). The statute defines “benefit” as “anything reasonably

regarded as a gain or advantage, including a promise or offer of employment,

a political favor, or an official act of discretion, whether to a person or another

party whose welfare is of interest to the person.” Id. § 276.015(a)(1).

These provisions are not recondite: a paid professional may not use

illegal means to conduct ballot harvesting nor may a person subsidize such

conduct. Had the legislature criminalized both paid and volunteer ballot

harvesting, it would not have limited the provision to those who receive a

“compensation or other benefit.”

Nonetheless, the district court hypothesized that it is unclear whether

the statute would prohibit providing volunteers with “a glass of water as a

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pick-me-up during a hot afternoon of door-knocking” or “providing

volunteers food, water, swag, letters of recommendation, academic credit,

gas cards, bus fare, free parking, or even the use of its offices for their

advocacy work.” The district court opined that neither the plain meanings

of the words “compensation” and “benefit” nor the statutory definition of

“benefit” could aid in discerning whether something trivial like a glass of

water is a form of “compensation or other benefit.”

In contrast to this judicial myopia, ordinary citizens serving on a jury

“should be capable of understanding” this statute’s “common-sense core of

meaning.” Tuilaepa, 512 U.S. at 973, 114 S. Ct. at 2635–36 (quoting Jurek,

428 U.S. at 279, 96 S. Ct. at 2959 (White, J., concurring in judgment)).

Limiting the statute’s scope to “compensation or other benefit” protects

campaign volunteers who are presumably less trained than seasoned, salaried

political operatives and who have no incentive to harangue voters for pay.

According to ordinary English, the statutory text, and the statutory

definition, this statute facially passes constitutional muster. “Benefit”

means “[p]rofit or gain; esp., the consideration that moves to the

promise . . . [or] [f]inancial assistance that is received from an employer.”

Benefit, Black’s Law Dictionary (12th ed. 2024). It can also mean “a service

(such as health insurance) or right (as to take vacation time) provided by an

employer in addition to wages or salary.” Benefit, Merriam-Webster,

https://www.merriam-webster.com/dictionary/benefit (last visited Nov. 18,

2025). The statutory definition builds on this ordinary English meaning. It

defines “benefit” as “anything reasonably regarded as a gain or advantage,

including a promise or offer of employment, a political favor, or an official act

of discretion, whether to a person or another party whose welfare is of

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interest to the person.” 3 Tex. Elec. Code § 276.015(a)(1). In the

political context, job offers, political favors, and official acts of discretion are

often part of the employment benefits that campaign operatives expect to

receive because “the hope of some [patronage] reward generates a major

portion of the local political activity.” Rutan v. Republican Party of Ill., 497

U.S. 62, 104, 110 S. Ct. 2729, 2753 (1990) (Scalia, J., dissenting) (quoting

Elrod v. Burns, 427 U.S. 347, 385, 96 S. Ct. 2673, 2695 (1976) (Powell, J.,

dissenting)).

Building on the theme of employment-related gains, “compensation”

means “[r]emuneration and other benefits received in return for services

rendered; esp., salary or wages.” Compensation, Black’s Law Dictionary (12th

ed. 2024). It can also mean “[s]alary or wages, esp. of a public servant;

payment for services rendered.” Compensation, Oxford English Dictionary,

https://www.oed.com/dictionary/compensation_n?tab=meaning_and_use

#8816104 (last visited Nov. 18, 2025). Taken together, the ordinary

definitions, statutory definitions, and structure of the statute show that the

phrase “compensation or other benefit” is not vague.

In addition to the statutory definition and the ordinary meaning of

both words, the canon of noscitur a sociis strongly implies that the provision is

not unconstitutionally vague. 4 “[T]he canon of noscitur a sociis teaches that

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3

The plaintiffs concede that the statutory definition provides the “floor for what

must be considered a ‘benefit.’” (emphasis in original). This concession is fatal, because it

undermines their burden to prove that the law is “impermissibly vague in all of its

applications.” McClelland, 63 F.4th at 1013 (quoting Home Depot, 773 F.2d at 627).

4

The plaintiffs argue that the noscitur a sociis canon is inapplicable because of

Texas’s Code Construction Act, which states, “‘[i]ncludes’ and ‘including’ are terms of

enlargement and not of limitation or exclusive enumeration, and use of the terms does not

create a presumption that components not expressed are excluded.” Tex. Gov’t Code

§ 311.005(13). But Texas courts “do not consider statutory words and phrases in

isolation.” GEO Grp., Inc. v. Hegar, 709 S.W.3d 585, 594 (Tex. 2025). Instead, they apply

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a word is ‘given more precise content by the neighboring words with which

it is associated.’” Fischer v. United States, 603 U.S. 480, 487, 144 S. Ct. 2176,

2183 (2024) (quoting United States v. Williams, 553 U.S. 285, 294, 128 S. Ct.

1830, 1839 (2008)). The canon cabins the meaning of statutory terms so that

a court does not “ascrib[e] to one word a meaning so broad that it is

inconsistent with the company it keeps.” Id. at 487, 144 S. Ct. at 2183–84

(internal quotation marks omitted) (quoting Gustafson v. Alloyd Co., 513 U.S.

561, 575, 115 S. Ct. 1061, 1069 (1995)). In the context of the statutory phrase

“compensation or other benefit,” noscitur a sociis supports that the statute is

targeting weighty benefits commonly received by professional political

operatives in exchange for their work on a campaign, such as a salary,

patronage, and official action.

2. “Physical Presence”

The district court also erred in holding that the statute’s term

“physical presence” is vague because it does not indicate how much physical

proximity between a canvasser and a ballot is required to establish criminal

liability. The district court makes much of hypothetical interactions, such as

a ballot harvester’s talking with a voter while a ballot is in another room or a

campaign worker’s speaking to an assembly of voters while some of them

have ballots hidden in their bags. These speculative scenarios are

inconsistent with a reasonable interpretation of the statute. If criminal juries

can understand the “common-sense core of meaning” of the statute, it is not

impermissibly vague. Tuilaepa, 512 U.S. at 973, 114 S. Ct. at 2635–36

_____________________

the noscitur a sociis canon to ensure that words “associated in a context suggesting that the

words have something in common . . . be assigned a permissible meaning that makes them

similar.” Id. (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 195 (2012)).

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(quoting Jurek, 428 U.S. at 279, 96 S. Ct. at 2959 (White, J., concurring in

judgment)).

Here, the phrase “physical presence” has a discernible, normative

meaning. “Presence” means “[c]lose physical proximity coupled with

awareness.” Presence, Black’s Law Dictionary (12th ed. 2024); see also

Presence, Merriam-Webster, http://merriam-webster.com/dictionary/

presence (last accessed Nov. 20, 2025) (“the part of space within one’s

immediate vicinity”); Presence, Oxford English Dictionary,

https://www.oed.com/dictionary/presence_n?tab=meaning_and_use#285

96772 (last accessed Nov. 20, 2025) (“the immediate vicinity of a person”).

“Physical” means “[o]f, relating to, or involving someone’s body as opposed

to mind.” Physical, Black’s Law Dictionary (12th ed. 2024); see also Physical,

OxfordEnglishDictionary,https://www.oed.com/dictionary/physical_adj?ta

b=meaning_and_use#30455352 (last accessed Nov. 20, 2025) (“Of an

action, event, etc.: undertaken or attended in person”). With the common

meaning of both words in mind, there is little doubt that the phrase “physical

presence” covers an in-person interaction where a ballot harvester is

knowingly in close physical proximity with a ballot.

To the extent that any doubt remains, the statute clarifies that it only

applies to interactions that “directly involve an official ballot.” Tex. Elec.

Code § 276.015(e)(3). “Directly” means “in immediate physical contact.”

Directly, Merriam-Webster, https://www.merriam-webster.com/

dictionary/directly (last accessed Nov. 18, 2025). In sum, the statutory text

provides a standard sufficient to pass constitutional muster.

Further, in his trial testimony, former Election Division Director

Keith Ingram interpreted the statute to prohibit “the voter and the harvester

get[ting] together and . . . reviewing the ballot together . . . and the harvester

mak[ing] sure they check the right box.” Texas courts would give

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considerable weight to this interpretation of the Secretary of State’s Office

because the Secretary is charged with interpreting and advising other election

officials on the meaning of the Election Code. Tex. Elec. Code §§

31.003, 31.004; R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean

Water, 336 S.W.3d 619, 624 n.6 (Tex. 2011) (holding that Texas courts give

“‘serious consideration’ to an agency’s construction of its statute and should

uphold the agency’s interpretation, so long as it is reasonable and does not

contradict the statute’s plain language” (quoting First Am. Title Ins. Co. v.

Combs, 258 S.W.3d 627, 632 (Tex. 2008))). Because such a narrow

interpretation offered by the Secretary of State’s office “is not contradictory

to the statute, . . . the court was . . . required to accept it.” Voting for Am.,

732 F.3d at 398. “[B]y failing to accept the State’s narrower construction of

the Act’s text, the district court erred.” Turtle Island Foods, S.P.C. v. Strain,

65 F.4th 211, 221 (5th Cir. 2023).

3. Mens Rea

Also overlooked by the district court was the important principle that

“a scienter requirement may mitigate a law’s vagueness, especially with

respect to the adequacy of notice to the complainant that his conduct is

proscribed.” Vill. of Hoffman Ests., 455 U.S. at 499, 102 S. Ct. at 1193. A

“scienter requirement in a statute ‘alleviate[s] vagueness concerns,’

‘narrow[s] the scope of [its] prohibition[,] and limit[s] prosecutorial

discretion.’” McFadden v. United States, 576 U.S. 186, 197, 135 S. Ct. 2298,

2307 (2015) (quoting Gonzales v. Carhart, 550 U.S. 124, 149–50, 127 S. Ct.

1610, 1828–29 (2007)). This principle applies to election integrity statutes.

See League of Women Voters of Fla. v. Fla. Sec’y of State, 66 F.4th 905, 947

(11th Cir. 2023) (“The mens rea element also undermines any assertion that

this phrase is unconstitutionally vague.”).

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Section 276.015 contains four scienter terms. A person violates the

statute if the person “knowingly provides or offers to provide vote harvesting

services in exchange for compensation or other benefit[,] . . . knowingly

provides or offers to provide compensation or other benefit to another person

in exchange for vote harvesting services[,] . . . [or] knowingly collects or

possesses a mail ballot or official carrier envelope in connection with vote

harvesting services.” Tex. Elec. Code § 276.015(b)–(d) (emphasis

added). The statute additionally defines illegal “vote harvesting services” as

“in-person interaction with one or more voters, in the physical presence of

an official ballot or a ballot voted by mail, intended to deliver votes for a

specific candidate or measure.” Id. § 276.015(a)(2) (emphasis added). And

in general, Texas law provides that “[i]f the definition of an offense does not

prescribe a culpable mental state, . . . intent, knowledge, or recklessness

suffices to establish criminal responsibility.” Tex. Penal Code

§ 6.02(c). Therefore, at minimum, a prosecutor must prove criminal

recklessness. 5 Criminal recklessness requires a person to be “aware of but

consciously disregard[] a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” Id. § 6.03(c). These numerous

mens rea requirements “mitigate [the] law’s vagueness.” Vill. of Hoffman

Ests., 455 U.S. at 499, 102 S. Ct. at 1193.

Considering all the foregoing reasons why the statute is not

unconstitutionally vague, we need hardly note that, even if ambiguous, the

statute would be “construed with lenity,” which “reinforces the

state’s . . . narrowing interpretation.” Voting for Am., 732 F.3d at 398.

_____________________

5

Due to the pre-enforcement nature of this challenge, Texas courts have not yet

been able to determine how these statutory mens rea requirements interact, demonstrating

yet again why pre-enforcement facial challenges are disfavored.

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C. First Amendment

1. Anderson/Burdick Analysis

“Where a state election rule directly restricts or otherwise burdens an

individual’s First Amendment rights, courts apply a balancing test derived

from two Supreme Court decisions” amalgamated as the “Anderson/Burdick

balancing test.” Voting for Am., 732 F.3d at 387; Anderson v. Celebrezze, 460

U.S. 780, 103 S. Ct. 1564 (1983); Burdick v. Takushi, 504 U.S. 428, 112 S. Ct.

2059 (1992). Under the test, “the court ‘must first consider the character

and magnitude of the asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff seeks to vindicate.’” Voting for

Am., 732 F.3d at 387 (quoting Anderson, 460 U.S. at 789, 103 S. Ct. at 1570).

Then, “the court ‘must identify and evaluate the precise interest put forward

by the State as justifications for the burden imposed by its rule.’” Id.

(quoting Anderson, 460 U.S. at 789, 103 S. Ct. at 1570). The court must then

weigh these factors. Id.

If a statute imposes “a severe burden on First Amendment rights” it

“must be ‘narrowly drawn to advance a state interest of compelling

importance.’” Id. at 388 (quoting Burdick, 504 U.S. at 434, 112 S. Ct. at

2063). In contrast, “when a state election law provision imposes only

‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth

Amendment rights of voters, ‘the State’s important regulatory interests are

generally sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434, 112

S. Ct. at 2063 (quoting Anderson, 460 U.S. at 788, 103 S. Ct. at 1570).

Anderson/Burdick review applies to “all First and Fourteenth

Amendment challenges to state election regulations.” Acevedo v. Cook Cnty.

Officers Electoral Bd., 925 F.3d 944, 949 (7th Cir. 2019) (Barrett, J.).

While Anderson/Burdick does not apply to “pure speech,” it applies

whenever the regulation in question “control[s] the mechanics of the

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electoral process.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345, 115

S. Ct. 1511, 1518 (1995). Laws relating to the “protection of voters” and

“prevention of fraud and corrupt practices” are governed by the

Anderson/Burdick test. Mazo v. N.J. Sec’y of State, 54 F.4th 124, 140 (3d Cir.

2022) (quoting Smiley v. Holm, 285 U.S. 355, 366, 52 S. Ct. 397, 399

(1932)). The Texas vote harvesting statute is designed “to reduce the

likelihood of fraud in the conduct of elections,” Tex. Elec. Code

§ 1.0015, by protecting voters from coercion, fraud, and corrupt practices

that “directly involve” an official ballot. Id. § 276.015(e)(3). Therefore,

Anderson/Burdick review applies. Mazo, 54 F.4th at 140.

The fact that the statute applies only in direct physical proximity to a

voter as he or she fills out an official ballot necessitates Anderson/Burdick

review. While speech that “occurs nowhere near the ballot” receives normal

First Amendment review, speech that occurs “within the voting process will

typically trigger application of the Anderson-Burdick balancing test.” Id. at

142.

2. Strict Scrutiny

But even if strict scrutiny applies, this statute would still pass

constitutional muster. Strict scrutiny requires the state “to prove that the

restriction furthers a compelling interest and is narrowly tailored to achieve

that interest.” Reed v. Town of Gilbert, 576 U.S. 155, 171, 135 S. Ct. 2218, 2231

(2015) (quoting Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564

U.S. 721, 734, 131 S. Ct. 2806, 2817 (2011)). While strict scrutiny is an

exacting standard, a statute protecting a voter’s “right to cast a ballot in an

election free from the taint of intimidation and fraud” represent one of the

“rare case[s]” where “a law survives strict scrutiny.” Burson v. Freeman,

504 U.S. 191, 211, 112 S. Ct. 1846, 1857–58 (1992). Because this statute

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survives strict scrutiny review, it necessarily satisfies the Anderson/Burdick

balancing test.

The vote harvesting statute serves multiple compelling state interests.

The Supreme Court has long recognized that “a State has a compelling

interest in protecting voters from confusion and undue influence” and in

“ensuring that an individual’s right to vote is not undermined by fraud in the

election process.” Id. at 199, 112 S. Ct. at 1851–52. A state also “indisputably

has a compelling interest in preserving the integrity of its election process.”

Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 231, 109 S. Ct. 1013,

1024 (1989).

These compelling interests in election security are heightened for

mail-in voting because “[v]ote buying schemes are far more difficult to detect

when citizens vote by mail” and “[f]raud is a real risk that accompanies mail-

in voting.” Brnovich, 594 U.S. at 685–86, 141 S. Ct. at 2347–48 (quoting

Report of the Comm’n on Fed. Election Reform, Building Confidence in

U.S. Elections 46 (Sept. 2005)); see also Veasey, 830 F.3d at 239 (“the

potential and reality of fraud is much greater in the mail-in ballot context than

with in-person voting.”). Texas has a compelling interest in preventing the

“pressure and intimidation” common in “third-party ballot collection.” Id.

at 686, 141 S. Ct. at 2348. In Brnovich, the Supreme Court upheld a vote

harvesting law and noted that similar “[r]estrictions on ballot collection are

also common in other States.” Id. at 685, 141 S. Ct. at 2348. In 2020,

Arizona, Indiana, Connecticut, New Mexico, Georgia, Missouri, Nevada,

North Carolina, Oklahoma, Ohio, Colorado, North Dakota, New Jersey,

Minnesota, Arkansas, Nebraska, West Virginia, South Dakota, California,

Maine, and Florida all had various forms of vote harvesting restrictions.

Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1068–69 (9th Cir. 2020)

(Bybee, J., dissenting). Evidence of “widespread . . . consensus” in vote

harvesting laws demonstrates that they are “necessary in order to serve the

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States’ compelling interests in preventing voter intimidation and election

fraud.” Burson, 504 U.S. at 206, 112 S. Ct. at 1855. Texas, like many other

states, has a compelling interest in preventing fraud by enacting vote

harvesting restrictions.

This statute is narrowly tailored to advance Texas’s compelling

interests in election integrity. To be narrowly tailored, a law must “actually

advance[] the state’s interest[,] . . . not sweep too broadly[,] . . . not leave

significant influences bearing on the interest unregulated (is not

underinclusive), and” be incapable of being “replaced by [any] other

regulation that could advance the interest as well with less infringement of

speech (is the least-restrictive alternative).” Dep’t of Tex., Veterans of Foreign

Wars of U.S. v. Tex. Lottery Comm’n, 760 F.3d 427, 440 (5th Cir. 2014) (en

banc) (quoting Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir.

2005) (en banc)).

First, the statute actually advances a number of the Texas’s interests.

It “protect[s] voters from confusion and undue influence,” “ensur[es] that

an individual’s right to vote is not undermined by fraud,” Burson, 504 U.S.

at 199, 112 S. Ct. at 1851–52, “preserv[es] the integrity of its election

process,” Eu, 489 U.S. at 231, 109 S. Ct. at 1024, and prevents “pressure and

intimidation” common in “third-party ballot collection,” Brnovich, 594 U.S.

at 686, 141 S. Ct. at 2348.

Second, the statute is not overbroad. A statute is overbroad only if a

“‘substantial number’ of its applications are unconstitutional, ‘judged in

relation to the statute’s plainly legitimate sweep.’” Wash. State Grange, 552

U.S. at 449 n.6, 128 S. Ct. at 1190 (quoting New York v. Ferber, 458 U.S. 747,

769–771, 102 S. Ct. 3348, 3361–62 (1982)). An overbreadth challenge

requires far more than a court’s “conceiv[ing] of some impermissible

applications of a statute.” Williams, 553 U.S. at 303, 128 S. Ct. at 1844

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(quoting Members of City Council of City of L.A. v. Taxpayers for Vincent, 466

U.S. 789, 800, 104 S. Ct. 2118, 2126 (1984)).

In Burson, the Supreme Court rejected an overbreadth challenge to a

Tennessee statute that prohibited campaign activity within 100 feet of a

polling place. 504 U.S. at 210 n.13, 112 S. Ct. at 1857. The challengers argued

overbreadth because a polling place could be located within 100 feet of a road

and drivers could be prosecuted for driving by in a car with a political bumper

sticker. Id. The Court rejected this hypothetical, and it reminded district

courts that borderline hypotheticals are best addressed by “as applied”

rather than facial challenges. Id. In the absence of any factual record

suggesting that the statute would operate in such a manner, the Court refused

to “entertain the challenge[].” Id. Likewise, this case contains no evidence

whatsoever that Texas would enforce this vote harvesting statute in an

impermissibly broad manner. “Absent evidence to the contrary, [the court

is] to presume public-spiritedness” in how election officials will implement

the law. Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018). This includes

the presumption that officials will not execute the law in a way that it is

impermissibly broad and standardless.

Third, the statute is not impermissibly underinclusive. Plaintiffs

argue that by applying only to paid vote harvesting, it is underinclusive. This

is not a fatal blow, however, because “the First Amendment imposes no

freestanding ‘underinclusiveness limitation.’” Williams-Yulee v. Fla. Bar,

575 U.S. 433, 449, 135 S. Ct. 1656, 1668 (2015) (quoting R.A.V. v. City of St.

Paul, 505 U.S. 377, 387, 112 S. Ct. 2538, 2545 (1992)). “A State need not

address all aspects of a problem in one fell swoop; policymakers may focus

on their most pressing concerns.” Id. Even under strict scrutiny, the

Supreme Court has upheld laws that were underinclusive and “could have

restricted even greater amounts of speech in service of their stated interests.”

Id. The Court cited Burson as one such case. Id.; 504 U.S. at 207, 112 S. Ct.

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at 1855–56. In Burson, the statute restricted campaign speech within 100 feet

of a polling location, but it allowed charitable solicitation, commercial

solicitation, and exit polling. 504 U.S. at 207, 112 S. Ct. at 1855–56. The

Court rejected the challenger’s underinclusiveness argument. Because there

was “ample evidence that political candidates have used campaign workers

to commit voter intimidation or electoral fraud,” the statute justifiably

prohibited campaign workers from entering the buffer zone while permitting

others to do so. Id. at 507, 112 S. Ct. at 1856. States are permitted to enact

election laws that “address the problems that confront them” while

declining “to regulate . . . problems that do not exist.” Id. As in Burson,

Texas has evidence that voter fraud primarily involves paid campaign

operatives. Therefore, Texas is permitted to regulate the conduct of paid

political operatives while leaving still nascent concerns about campaign

volunteers unaddressed.

Fourth, the statute satisfies the least restrictive means test. Texas has

other election integrity statutes on the books, but no other law addresses

Texas’s legitimate interest in preventing the “pressure and intimidation”

common with paid “third-party ballot collection.” Brnovich, 594 U.S. at 686,

141 S. Ct. at 2348. Texas is permitted to “take steps to ensure that partisan

discord not follow the voter up to the voting booth, and distract from a sense

of shared civic obligation at the moment it counts the most.” Minn. Voters

All. v. Mansky, 585 U.S. 1, 15–16, 138 S. Ct. 1876, 1888 (2018). In the context

of mail-in voting, limiting campaign speech in the presence of a voter who is

filling out a ballot is the only way to create this desired “island of calm in

which voters can peacefully contemplate their choices.” Id. at 15, 138 S. Ct.

at 1887 (internal quotation marks omitted).

Further, the statute is the least restrictive means to “protect the

secrecy of the ballot.” Tex. Elec. Code § 1.0015. “Limit[ing] access to

the area around the voter” while the voter is filling out a ballot is “the only

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way to preserve the secrecy of the ballot.” Burson, 504 U.S. at 207–08, 112

S. Ct. at 1856. To protect ballot secrecy, the Supreme Court has upheld

regulations creating a “restricted zone” around the “secret ballot.” Id. at

206, 112 S. Ct. 1855. Permissible restrictions often ban campaign operatives

from entering a buffer zone around the entrance and inside a polling place.

Id. at 211, 112 S. Ct. at 1857–58. “[T]he same concerns about privacy and

security at the voting booth readily apply to privacy and security when it

comes to mail-in ballots.” La Union Del Pueblo Entero, 119 F.4th at 409.

Texas permissibly addressed these concerns with the vote harvesting

prohibition. For mail-in balloting, Texas’s vote harvesting statute is the least

restrictive means to accomplish the same objectives permitted in the in-

person voting context. Therefore, the Texas vote harvesting statute

withstands strict scrutiny review and is permissible under the First

Amendment.

D. Sovereign Immunity

The Attorney General and Secretary of State are entitled to sovereign

immunity. “Generally, state sovereign immunity precludes suits against

state officials in their official capacities.” Tex. Democratic Party v. Abbott, 961

F.3d 389, 400 (5th Cir. 2020). Ex parte Young, 209 U.S. 123, 28 S. Ct. 441

(1908), represents “an exception to that baseline rule,” and it allows for

“relief against state officials acting in violation of federal law.” Tex.

Democratic Party, 961 F.3d at 400 (emphasis in original) (quoting Frew ex rel.

Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903 (2004)). For the Ex

parte Young exception to apply, a “state official[] must have some connection

to the state law’s enforcement.” Id. (internal quotation marks omitted)

(quoting Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851

F.3d 507, 517 (5th Cir. 2017)). Furthermore, “a mere connection to a law’s

enforcement is not sufficient—the state official[] must have taken some step

to enforce.” Id. at 401.

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The Attorney General and the Secretary asserted sovereign immunity

here, but the district court denied their motion. The district court not only

denied their motion but entered judgment against them in this case while the

identical issue was being appealed from that same court in another S.B. 1 case.

The district court doubly erred by requiring them to remain as defendants

and continuing the litigation against them. First, “it is the general rule that

a district court is divested of jurisdiction upon the filing of the notice of

appeal with respect to any matters involved in the appeal.” United States v.

Paxton, 148 F.4th 335, 340 (5th Cir. 2025) (quoting Alice L. v. Dusek, 492 F.3d

563, 564 (5th Cir. 2007) (per curiam)). Second, this court ruled on the State

defendants’ appeal and found that neither the Secretary nor the Attorney

General is a proper party defendant for challenging the specific portions of

S.B. 1 at issue in this appeal. La Union del Pueblo Entero v. Nelson, 163 F.4th

239, 263–67, 270–75 (5th Cir. 2025).

Although the State defendants are not proper parties, the injunction

still fairly bound the named defendant district attorneys. For sovereign

immunity purposes, county DAs may be the best available defendants. See Mi

Familia Vota v. Ogg, 105 F.4th 313, 328 (5th Cir. 2024). Evaluating how Ex

parte Young applies requires a “case-by-case approach.” Id. at 333 (quoting

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 280, 117 S. Ct. 2028, 2039

(1997)). Whether or not a party is a proper defendant under Ex parte Young

is a fact-intensive question based on whether “(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 persons] to obey the

challenged law.’” Id. at 325 (quoting Tex. All., 28 F.4th at 672). The second

factor was dispositive in Mi Familia Vota. Id. at 331. District Attorney Ogg

“stipulate[d] that she will not enforce the challenged criminal provisions

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until a final, non-appealable decision has been issued,” and this court

determined that she did not “demonstrate[] a willingness to enforce the

challenged election code provisions.” Id. at 330–31. This court held she was

not a proper party, with the caveat that if she “reneges on her promise, the

Plaintiffs may be able to . . . overcome sovereign immunity.” Id. at 331

n.13. In contrast to District Attorney Ogg, the DAs in this case have

stipulated that they will enforce the statute absent an injunction. Under the

Mi Familia Vota framework, that is enough to overcome sovereign immunity

and make them proper parties.

As in Paxton, the district court’s messy handling of the sovereign

immunity issue poses “no jurisdictional bar to our court reaching the merits

of this suit and determining the validity of the [statute].” 148 F.4th at 340.

Moreover, the injunction against the DAs demonstrably harms the

Republican intervenors’ interests. This court previously found that the

Republican intervenors had a right to intervene to defend S.B. 1, and nothing

has changed to disturb that holding. La Union del Pueblo Entero v. Abbott, 29

F.4th 299, 304 (5th Cir. 2022). For an intervenor to have standing to appeal,

it must have suffered an “injury from the judgment of the lower court.”

DeOtte v. Nevada, 20 F.4th 1055, 1070 (5th Cir. 2021). “Standing includes

injury in fact, a causal connection, and redressability.” Id. A threat to a

political party’s “election prospects” is “a concrete and particularized injury

sufficient for standing purposes.” Tex. Democratic Party v. Benkiser, 459 F.3d

582, 586–87 (5th Cir. 2006). The Republican intervenors asserted that

“Republican voters are more likely to participate in elections and turn out to

vote if they have confidence in the integrity of elections, and S.B. 1 increases

voter confidence.” Therefore, enjoining S.B. 1 harms “the electoral

prospects of Republican candidates.” “Having found injury in fact in [the

Republican intervenors’] threatened loss of political power, we also find

causation and redressability.” Benkiser, 459 F.3d at 587. Republican

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intervenors’ “injury would be redressed by a favorable court ruling that

vacated the injunction[].” DeOtte, 20 F.4th at 1071.

* * *

For these reasons, the judgment of the district court is REVERSED.

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