Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00076-CV

Esperanza Andrade, in her official capacity as Secretary of State for the State of Texas,

Appellant

v.

NAACP of Austin, Nelson Linder, Sonia Santana and David Van Os, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. D-1-GN-06-002147, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING

O P I N I O N

Appellees NAACP of Austin, Nelson Linder, Sonia Santana, and David Van Os

sought declaratory and injunctive relief against the Secretary of State for the State of Texas, (1) alleging

that the Secretary acted outside her statutory and constitutional authority when she certified the

paperless computerized voting machine and system currently used in Travis County. (2) In this

interlocutory appeal, the Secretary contends that the trial court erred in denying her plea to the

jurisdiction, filed on the grounds of sovereign immunity and standing. Because we conclude the trial

court has subject matter jurisdiction over this suit, we affirm the trial court's order denying the plea

to the jurisdiction.

BACKGROUND

Appellees brought suit in June 2006 against the Secretary for "failure to provide

voting procedures that ensure their right to a properly counted vote, and a fair and secure election."

Asserting violations of the Texas Constitution and the Texas Election Code, appellees challenged

the Secretary's certification of the paperless computerized voting machine and system currently used

in Travis County, the Hart Intercivic eSlate ("eSlate"). (3) Appellees' primary complaint is that the

eSlate does not provide a voter-verified paper audit trail independent of its software. Appellees seek

declaratory relief that the Secretary was "violating, and continuing to violate, Plaintiffs' fundamental

voting rights, guaranteed under the Texas Constitution and the Texas Election Code," and injunctive

relief to enjoin the Secretary from permitting the use of "paperless election systems, without an

independent paper ballot mechanism."

In their petition, appellees' pleaded facts include:

7. . . . The voting system in question is used in Travis County local elections,

and is certified by the Defendant Secretary of State.

* * *

9. Plaintiffs, except for Mr. Van Os, are voters in Travis County, and have

participated, and will continue to participate, in Travis County elections.

Plaintiffs are required to use a paperless computerized voting machine during

Travis County elections, certified by Defendant Secretary.

10. Plaintiff Van Os is a candidate for state office, specifically the position of

Attorney General. He seeks the votes of people from Travis County, and the

outcome of his election may depend on the outcome of voting in Travis

County.

11. The election procedure for paperless computerized voting in Travis County

requires electors to enter their vote into the computer, using a turn dial

system. . . . After the computer has prompted the elector to vote in each

individual election, the elector is then offered the opportunity to view a

screen showing a summary of all the votes placed. Once approved by the

elector, the voting summary disappears from the screen and is believed to be

recorded by the computer software.

* * *

13. Voters must rely on the software used to assure their votes are recorded

properly. Once an elector enters his or her vote, there is no way to

independently determine if the vote cast has been recorded correctly. The

voter is forced to hope the software that records the votes is created and

maintained, without mistake or fraud, to protect the integrity of the ballot. . . .

There is no independent verification mechanism required by the

Secretary. . . .

14. The software used to record and tabulate the votes cast has been created by

a private entity, Hart Intercivic, and certified for use by the Defendant

Secretary. However, the actual procedures of this private company are not

governed by Texas law. Thus, the voters and candidates must rely on a

private company completely unsupervised by Texas officials to ensure votes

are properly counted and the voting system has been properly constructed,

maintained, and secured.

15. The Secretary has no way to determine if the software has been properly

designed, is functioning properly while in use, or has been protected from

tampering, fraudulent or otherwise. All checks on the proper functioning of

the software are created, and thus ultimately controlled by Hart Intercivic.

16. The coding created by Hart Intercivic is not open to public scrutiny. Travis

County is only provided procedures by Hart Intercivic to conduct checks on

the machine's accuracy. . . .

* * *

19. . . . . The paperless computerized voting systems only allow for a re-tabulation of the votes cast and recorded. There is no independent procedure

to assure the votes recorded by the software equals the votes intended by the

electors.

20. The lack of proper re-count procedure for computerized voting machines

creates a disparity in the re-count methodology. Voters not required to use

the paperless computerized voting machines (absentee, military, etc.) are

granted the right to a hand re-count of votes. This fails to provide the voters

and candidates with an equal way of accurately counting the vote. . . .

* * *

28. Countless reports of malfunctions and security issues have been reported with

paperless computerized voting systems. Problems with Hart Intercivic's

E-slate machine, currently used in Travis County, have been reported in

Texas and nationwide. Problems with other computer-based paperless

machines certified in Texas have been, and are continuing to be reported,

nationwide.

* * *

30. Only with a paper verified system can a proper audit be performed on an

election run by computerized voting machines. There can never be a

paperless system that does not require sole reliance on the machine itself, and

prevent independent verification.

* * *

37. The paperless computerized voting machine only has the ability to re-tabulate

the votes already recorded. There is no independent verification the votes

recorded reflect the intention of the voters. Even though the machines have

the capability of producing a "ballot image report," this report is insufficient

to comply with the verified re-count granted by the Legislature. The report

simply prints out its own recording of the votes cast. . . . There is no way to

independently verify the accuracy of the machine in reprinting the recorded

votes.

* * *

39. The computerized voting machine does not provide electors with a paper

ballot of their vote. A ballot would provide confidence in the elector that the

vote recorded was the ballot he or she intended to cast, and also provide a

way for the vote to be independently verified in the case of a re-count.

Without providing evidence on paper of the vote cast, there is no way to

comply with the Election Code's requirement of "verification of the vote"

during a re-count.

* * *

51. No verifiable manual re-count can be conducted using the computerized

voting machines in place today. . . .

The Secretary in October 2007 filed a motion for summary judgment pursuant to

166a(c) and (i) of the rules of civil procedure and a plea to the jurisdiction, asserting that the

individual appellees and the NAACP of Austin do not have standing to bring their claims and that

sovereign immunity barred the suit. Appellees responded, filing evidence including affidavits from

Linder, Santana, Van Os, and Dan Wallach, who averred as an expert concerning the eSlate. The

Secretary filed a reply with objections to portions of the affidavits of Linder, Van Os, and Wallach,

but did not file any controverting evidence. After a hearing, the trial court sustained the Secretary's

objections in part, but overruled the Secretary's objections to the content of Wallach's affidavit. The

trial court denied the plea to the jurisdiction and the motion for summary judgment. This

interlocutory appeal from the denial of the plea to the jurisdiction followed. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014 (a)(8) (West 2008).

ANALYSIS

In two issues, the Secretary contends that the trial court erred in denying her plea to

the jurisdiction because appellees lack standing and their suit is barred by sovereign immunity. The

Secretary did not offer controverting evidence and does not dispute appellees' evidence. Her

contention is that the trial court does not have subject matter jurisdiction because appellees failed

to allege or demonstrate standing to bring their claims or a waiver of sovereign immunity.

Standard of Review

We review the trial court's ruling on a plea to the jurisdiction de novo. Texas Dep't

of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004). A plea to the jurisdiction is a

dilatory plea that contests the trial court's authority to determine the subject matter of the cause of

action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue ,

34 S.W.3d 547, 554 (Tex. 2000). The plaintiff's claims may form the context in which a dilatory

plea is raised, but the plea should be decided without delving into the merits of the case. Id . The

purpose of a dilatory plea is not to force a plaintiff to preview his case on the merits but to establish

a reason why the merits of the plaintiff's claims should never be reached. Id .

When a plea to the jurisdiction challenges the pleadings, we must determine if the

pleader has alleged sufficient facts to affirmatively demonstrate the trial court's jurisdiction to hear

the cause. See Miranda , 133 S.W.3d at 226 -27 (citing Texas Ass'n of Bus. v. Texas Air Control Bd. ,

852 S.W.2d 440, 446 (Tex. 1993)). To make this determination, we look to the pleader's intent,

construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings

as true. Id . A plaintiff has a right to cure pleadings defects if the plaintiff has not alleged sufficient

jurisdictional facts. Texas Dep't of Transp. v. Ramirez , 74 S.W.3d 864, 867 (Tex. 2002) (citing

Texas Ass'n of Bus. , 852 S.W.2d at 446 ). We also may consider evidence filed by the parties

regarding the jurisdictional issue and must do so when necessary to resolve the jurisdictional

issues raised. Bland Indep. Sch. Dist. , 34 S.W.3d at 554 . If the evidence creates a fact issue

regarding the jurisdictional issue, the trial court may not grant the plea to the jurisdiction. Miranda ,

133 S.W.3d at 227-28 .

The Controversy

In appellees' suit seeking injunctive and declaratory relief from the Secretary's

alleged violation of their rights, the issue is whether the Secretary acted outside her constitutional

and statutory authority by certifying the eSlate for use in Travis County. Appellees contend that the

Secretary acted outside her statutory authority when she certified the eSlate because it does not meet

election code voting system standards. See Tex. Elec. Code Ann. §§ 122.031 -.39 (West 2003

& Supp. 2008). Appellees further contend that the Secretary acted outside her constitutional

authority because certification of the eSlate violated appellees' equal protection rights pursuant to

Article I, section 3, of the Texas Constitution. See Tex. Const. art. I, § 3. (4) Appellees also contend

that the Secretary's certification violated their suffrage rights pursuant to article VI, sections 2(c) and

(4), of the Texas Constitution. See Tex. Const. art. VI, §§ 2(c), (4). (5) Construing appellees'

pleadings in favor of jurisdiction and not delving into the merits of their claims, we turn to the

Secretary's issues on appeal. See Miranda , 133 S.W.3d at 226-27 ; Bland Indep. Sch. Dist .,

34 S.W.3d at 554 .

Standing

In her first issue, the Secretary contends that appellees do not have standing to

challenge the Secretary's certification of the eSlate because they have not "alleged or offered any

proof that the voting machines used in Travis County have ever damaged their votes or anyone else's

votes." She contends that the law requires that appellees "plead concrete, particularized injuries

personal to them from their use of the complained of voting machines," and that they allege "only

speculative injury to their votes (or campaign)." The Secretary also contends that appellees' status

as voters or participants in the political process does not provide standing because standing requires

an injury distinct from that sustained by the public at large. As to appellees' equal protection claim,

the Secretary further contends that appellees failed to demonstrate that they were singled out and

treated differently from others similarly situated. The Secretary also challenges the associational

standing of Linder and the NAACP to bring suit on behalf of NAACP members.

Standing is a component of subject matter jurisdiction. Tex. Ass'n of Bus. ,

852 S.W.2d at 446 . The general test for common law standing in Texas requires that there "(a) shall

be a real controversy between the parties, which (b) will be actually determined by the judicial

declaration sought." Id . (quoting Board of Water Eng'rs v. City of San Antonio , 283 S.W.2d 722,

724 (Tex. 1955)). Suits for equitable relief may be maintained against governmental entities

for constitutional violations. See City of Elsa v. M.A.L. , 226 S.W.3d 390, 392 (Tex. 2007);

City of Beaumont v. Bouillion , 896 S.W.2d 143, 149 (Tex. 1995). Private parties may seek

declaratory relief against state officials who allegedly act without legal or statutory authority.

Texas Natural Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002).

Section 273.081 of the election code further provides that a person "who is being harmed or is in

danger of being harmed by a violation or threatened violation of this code is entitled to appropriate

injunctive relief to prevent the violation from continuing or occurring." Tex. Elec. Code Ann.

§ 273.081 (West 2003).

For cases within a court's jurisdiction, courts may determine the statutory and

constitutional rights of parties pursuant to the Uniform Declaratory Judgment Act when a

controversy has arisen but before any wrong has been committed. See Tex. Civ. Prac. & Rem. Code

Ann. § 37.004 (West 2008) ("A person . . . whose rights . . . are affected by a statute . . . may have

determined any question of construction or validity arising under . . . the statute."); Barshop

v. Medina County Underground Water Conservation Dist ., 925 S.W.2d 618, 626 (Tex. 1996) (in

facial constitutional challenge to statute, plaintiff must have suffered "some actual or threatened

injury" under the statute and must contend "the statute unconstitutionally restricts the plaintiff's own

rights"); Tex. Ass'n of Bus. , 852 S.W.2d at 444 (UDJA "procedural device for deciding cases already

within a court's jurisdiction"); Bexar Metro. Water Dist. v. City of Bulverde , 156 S.W.3d 79, 88

(Tex. App.--Austin 2004, pet. denied) (UDJA provides means for court to make determination

"before any wrong has actually been committed," that is "preventative in nature"); Democracy

Coalition v. City of Austin , 141 S.W.3d 282, 296-97 (Tex. App.--Austin 2004, no pet.) (UDJA may

be used to "clarify constitutional imperatives").

Appellees allege that the Secretary acted outside her authority in certifying the eSlate

under the election code and the Texas Constitution and that they have been harmed by the

Secretary's actions. See Tex. Const. art. I, § 3, art. VI, §§ 2(c), (4); Tex. Elec. Code Ann.

§§ 122.031 -.39, 273.081; Tex. Civ. Prac. & Rem. Code Ann. § 37.004 . We turn to a review of

appellees' pleaded facts, accepting the pleadings as true and construing them liberally in favor of

jurisdiction, as we are required to do. See Miranda , 133 S.W.3d at 226-27 .

Appellees alleged that they are registered voters in Travis County, represent registered

voters, or are participants in the political process in Travis County (6) without an alternative but to use

the eSlate to cast their votes in elections in Travis County; the eSlate is not capable of providing

records for an audit or a verifiable recount, has problems with malfunctions and security issues, and

only has the ability to re-tabulate votes already recorded; problems with the eSlate "have been

reported in Texas and nationwide"; the Secretary has "no way to determine" if the eSlate software

has been "protected from tampering, fraudulent or otherwise"; and other voters in Texas utilize

voting systems that provide a record for an audit and a verifiable recount. We conclude appellees

have pleaded sufficient facts to demonstrate their standing to pursue their claims for declaratory and

injunctive relief against the Secretary. See id.

Apart from appellees' pleadings, we need not "weigh the claims' merits" to conclude

that appellees' uncontroverted evidence filed in response to the Secretary's plea and motion for

summary judgment only bolsters appellees' assertion of standing. See County of Cameron v. Brown ,

80 S.W.3d 549, 555 (Tex. 2002); Bland Indep. Sch. Dist. , 34 S.W.3d at 555 . (7) In his affidavit,

Dan Wallach averred as an expert concerning the eSlate. He averred to the results of studies

conducted on the eSlate and his opinions from the studies, including that the eSlate software is

subject to compromise and has "significant security flaws," that the eSlate only is capable of

re-tabulating the votes recorded, that it cannot provide a meaningful audit, and voters in other Texas

counties are allowed independent verification of their vote. He also averred to actual malfunctions

that had occurred in Texas elections.

Relying on DaimlerChrysler Corporation v. Inman, 252 S.W.3d 299, 304-05

(Tex. 2008), the Secretary contends that appellees do not have standing because they have not

alleged an actual injury, but only a speculative or hypothetical injury concerning the eSlate being

used in Travis County . In DaimlerChrysler, three plaintiffs sued on their own and for a nationwide

class of some ten million owners and lessees of DaimlerChrysler vehicles for economic damages for

faulty seatbelts. Id . at 300. The plaintiffs did not allege that the seatbelts had caused injury and were

unaware of "anyone who was ever harmed" by the seatbelts. Id . at 301. The supreme court

concluded that "the plaintiffs' fear of possible injury from an accidental release of a seatbelt is so

remote that they lack standing to assert their claims." Id . In that context, the supreme court stated

that, for a plaintiff to have standing, "a plaintiff must be personally aggrieved; his alleged injury must

be concrete and particularized, actual or imminent, and not hypothetical." See id . at 304-05. In

contrast, appellees seek declaratory and injunctive relief concerning the exercise of their fundamental

right to vote based on the Secretary's certification of the eSlate for use in elections in Travis County.

See Tex. Elec. Code Ann. § 273.081 ; Tex. Ass'n of Bus. , 852 S.W.2d at 446 ; Bexar Metro. Water

Dist ., 156 S.W.3d at 88 ; Democracy Coalition , 141 S.W.3d at 296-97 . (8)

We are not persuaded by the Secretary's argument that appellees have not alleged an

injury distinct from the public at large. See Brown v. Todd , 53 S.W.3d 297, 302 (Tex. 2001) (to have

standing, plaintiff must allege "some injury distinct from that sustained by the public at large"). In

Brown , the plaintiffs, a citizen and a city council member, challenged a mayor's authority to issue

an executive order. Id . at 299. The plaintiffs asserted their claim based on their status as persons

who had voted against an ordinance that was "overridden and virtually held for naught" by the later

executive order. Id . at 304. The supreme court, in determining that the plaintiffs did not have

standing to challenge the executive order, noted that the plaintiffs' votes against the ordinance were

"given full effect" to defeat the proposed ordinance, which did not go into effect. Id . In contrast,

appellees' allegations concern the process in which they exercise as registered voters their right

to vote in Travis County. See id. at 303-04; White v. Robinson , 260 S.W.3d 463 , 471

(Tex. App.--Houston [14th Dist.] 2008, pet. filed) (distinction drawn for purposes of

standing between challenge to election result and election process); see also Wexler v. Anderson ,

452 F.3d 1226, 1230 (11th Cir. 2006) (court addressed merits of challenge to touchscreen

voting system brought by registered voter with others); Weber v. Shelley , 347 F.3d 1101, 1105-07

(9th Cir. 2003) (court addressed merits of challenge brought by resident and registered voter of

county to the lack of voter-verified paper-trail in touchscreen voting system); Blum v. Lanier ,

997 S.W.2d 259, 262, 264 (Tex. 1999) (qualified voter who signed an initiative petition had standing

to challenge the form in which referendum put to citizens).

We are equally unpersuaded by the Secretary's argument that appellees do not have

standing to assert an equal protection claim because they have not shown that they are being treated

differently from other voters similarly situated. See Texas Dep't of Transp. v. City of Sunset Valley ,

146 S.W.3d 637, 647 (Tex. 2004) ("To bring an individual equal-protection claim, [plaintiffs] must

demonstrate that they were intentionally singled out and treated differently from others similarly

situated."). Taking appellees' pleadings as true, appellees have no choice but to use the eSlate for

elections in Travis County, compared with other voters in the state of Texas. See Dunn v. Blumstein,

405 U.S. 330, 336 (1972) ("[A] citizen has a constitutionally protected right to participate in

elections on an equal basis with other citizens in the jurisdiction.").

As to the associational standing of the NAACP of Austin and Linder to bring claims

on behalf of NAACP members, the Secretary challenges only the first prong of the test for

associational standing. See Texas Ass'n of Bus. , 852 S.W.2d at 447 . Under the test for associational

standing, "an association has standing to sue on behalf of its members when '(a) its members would

otherwise have standing to sue in their own right; (b) the interests 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.'" Id . (quoting Hunt v. Washington State Apple

Comm'n , 432 U.S. 333, 343 (1977)). Linder has brought suit in his own capacity as a voter and

participant in Travis County elections and has standing to assert his claims. Because we conclude

that NAACP members as registered voters and participants in Travis County elections would have

standing to sue in their own right, we conclude that the NAACP of Austin has associational standing

to seek declaratory and injunctive relief against the Secretary on behalf of its members.

We conclude that appellees have affirmatively demonstrated that they have standing

to assert their claims for declaratory and injunction relief concerning the Secretary's certification of

the eSlate. See Tex. Elec. Code Ann. § 273.081 ; Tex. Ass'n of Bus. , 852 S.W.2d at 446 ; Democracy

Coalition , 141 S.W.3d at 296-97 . We overrule the Secretary's first issue.

Sovereign Immunity

In her second issue, the Secretary argues that even if the NAACP of Austin and the

individual appellees have standing, their suit is barred by sovereign immunity because the

Secretary's decision to approve the eSlate was discretionary, appellees have not alleged an ultra vires

act, and there is no statutory authority to review the Secretary's administrative decision to certify the

eSlate. The Secretary contends that appellees failed to demonstrate a waiver of sovereign immunity

because they failed to allege or show that the Secretary did not follow the procedures for certification

as outlined in the election code. The Secretary also contends that appellees have failed to plead a

basis of jurisdiction with respect to the statutory recount provisions, contending that there is no

requirement in the election code that voting systems must have a voter-verified paper ballot, an

optical scan, or other safeguard desired by appellees.

Sovereign immunity is properly asserted in a plea to the jurisdiction, see Miranda ,

133 S.W.3d at 225-26 , and, absent an express waiver of sovereign immunity, the State is generally

immune from suit. State v. Holland , 221 S.W.3d 639, 643 (Tex. 2007). But sovereign immunity

does not shield a governmental entity from a suit for declaratory and equitable relief for a

constitutional violation. See City of Elsa , 226 S.W.3d at 392 ; City of Beaumont , 896 S.W.2d at149.

We conclude that appellees' claims seeking declaratory and injunctive relief for alleged

constitutional violations are not barred by sovereign immunity. We turn then to appellees' claims

based on election code violations.

A justiciable controversy regarding whether a state agency or officer has acted beyond

his statutory authority also does not implicate sovereign immunity. See Federal Sign v. Texas S.

Univ ., 951 S.W.2d 401, 404 (Tex. 1997) (action to determine or protect private parties' rights against

"a state official who has acted without legal or statutory authority is not a suit against the State that

sovereign immunity bars") (citing Cobb v. Harrington , 190 S.W.2d 709, 712 (Tex. 1945)); see also

IT-Davy , 74 S.W.3d at 855 . Further, section 273.081 of the election code provides that a person

"who is being harmed or is in danger of being harmed by a violation or threatened violation of this

code is entitled to appropriate injunctive relief to prevent the violation from continuing or

occurring." Tex. Elec. Code Ann. § 273.081 ; In re Gamble , 71 S.W.3d 313, 317 (Tex. 2002) ("As

is evident, the Legislature has specifically called upon the courts [under section 273.081] to

exercise their equitable powers to resolve election code violations."); Triantaphyllis v. Gamble ,

93 S.W.3d 398, 401, 408 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (injunctive relief

under section 273.081 concerning alleged election code violations upheld). The issue then is

whether appellees have affirmatively demonstrated a justiciable controversy that the Secretary

acted outside her statutory authority under the election code. See Miranda , 133 S.W.3d at 227-28 ;

Federal Sign , 951 S.W.2d at 404 . (9)

We begin by reviewing the Secretary's authority under the election code to approve

or deny applications for voting systems and equipment. Subchapter B of chapter 122 sets forth the

procedures that the Secretary must follow in determining whether to approve or disapprove an

application for a voting system. See Tex. Elec. Code Ann. §§ 122.031 -.039; see id . § 122.031(a)

(West 2003) (voting system may not be used in election in Texas unless approved by secretary of

state). Section 122.036 provides for the appointment of examiners to examine voting systems and

to submit written reports to the Secretary. See id. § 122.036 (West 2003). After the examiners'

report is delivered to the Secretary, the Secretary conducts a public hearing. See id . § 122.0371

(West Supp. 2008). The Secretary then reviews the examiners' reports, considers the views

expressed at the public hearing, and determines if the voting system satisfies the applicable

requirements in the election code:

(a) After reviewing the examiners' reports and considering the views expressed

at the public hearing, the secretary of state shall determine whether the voting

system or voting system equipment for which an application has been

submitted satisfies the applicable requirements for approval.

(b) The secretary may examine the system or equipment to aid in determining

whether it satisfies the requirements for approval.

(c) If the system or equipment satisfies the applicable requirements for approval,

the secretary by written order shall approve the system or equipment of that

design for use in elections. Otherwise, the secretary shall deny the

application.

See id. § 122.038 (West Supp. 2008). Pursuant to subsection (c) of section 122.038, the Secretary

does not have discretion in her determination whether to deny or approve an application for a voting

system. See id . § 122.038(c). She is only authorized to approve or disapprove a voting system based

on the system's compliance with voting system standards. See id . § 122.032(a) (West 2003) ("For

a voting system or voting system equipment to be approved for use in elections, the voting system

in which the equipment is designed to be used must comply with the standards

proscribed by Subchapter A."); see also Tex. Gov't Code Ann. § 311.016 (2) (West 2005) ("'Shall'

imposes a duty.").

Subchapter A of chapter 122 of the election code sets forth the voting system

standards. See Tex. Elec. Code Ann. §§ 122.001 -.005 (West 2003 & Supp. 2008). "A voting system

may not be used in an election unless the system" meets certain standards, including that the system

"is capable of providing records from which the operation of the voting system may be audited."

See id . § 122.001(a) (11). The election code also provides for recounts. See id. §§ 211.001-216.005

(West 2003 & Supp. 2008); id . § 211.001 (West 2003) ("A recount may be obtained as provided by

this title in any election."). A recount is defined as "the process conducted under this title for

verifying the vote count in an election." Id . § 211.002(1) (West 2003).

Appellees' pleaded facts include that the eSlate is not capable of providing records

for an audit or a verifiable recount. These allegations are sufficient to support appellees' claim that

the Secretary acted outside her statutory authority because the Secretary is only authorized to approve

a voting system "capable of providing records from which the operation of the voting system may

be audited" and that has the capability to provide a recount--"the process conducted under this title

for verifying the vote count in an election." See id . §§ 122.001(a)(11), 122.038(c), 211.002(1).

Wallach averred, as an expert on the eSlate, that the eSlate is not capable of providing an

independent verification of votes and that it cannot provide a meaningful audit. (10) Appellees'

evidence filed in response to the Secretary's plea and motion for summary judgment further

demonstrates that sovereign immunity does not bar appellees' election code claims. See Bland

Indep. Sch. Dist ., 34 S.W.3d at 554 .

The Secretary contends that appellees have failed to plead a claim with respect to the

statutory recount provisions because the election code does not require the particular systems that

appellees advocate. Whether or not appellees' pleadings include allegations that the Secretary

should approve particular systems in place of the eSlate, appellees pleaded and seek declaratory and

injunctive relief to enjoin the Secretary from approving the eSlate for use in Travis County. We

conclude that appellees have affirmatively demonstrated the trial court's jurisdiction to determine

whether the Secretary acted outside her statutory authority when she certified the eSlate. See Tex.

Elec. Code Ann. § 122.038 (c); Miranda , 133 S.W.3d at 226-27 ; Federal Sign , 951 S.W.2d at 404 .

We overrule the Secretary's second issue.

CONCLUSION

Having concluded that appellees have standing and that sovereign immunity does not

bar their claims, we conclude the trial court has subject matter jurisdiction over this suit, and we

affirm the trial court's order denying the plea to the jurisdiction.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson:

Dissenting Opinion by Justice Waldrop

Affirmed

Filed: April 10, 2009

1. We substitute Esperanza Andrade, in her official capacity as Secretary of State for the State

of Texas, as the proper party on appeal in place of former Secretary of State, Phil Wilson. See Tex.

R. App. P. 7.2(a) (automatic substitution of public officer as party in official capacity).

2. Appellees also brought suit against Dana DeBeauvoir, in her official capacity as the Travis

County Clerk, but she was dismissed from the suit. Her dismissal is not at issue in this interlocutory

appeal.

3. See Tex. Const. art. I, § 3, art. VI, §§ 2(c), (4); Tex. Elec. Code Ann. §§ 122.031 -.39

(West 2003 & Supp. 2008).

4. Section 3 of article I of the Texas Constitution reads:

All free men, when they form a social compact, have equal rights, and no man, or set

of men, is entitled to exclusive separate public emoluments, or privileges, but in

consideration of public services.

Tex. Const. art. I, § 3.

5. Sections 2(c) and 4 of article VI read:

Sec. 2(c): The privilege of free suffrage shall be protected by laws regulating

elections and prohibiting under adequate penalties all undue

influences in elections from power, bribery, tumult, or other improper

practice.

* * *

Sec. 4: In all elections by the people, the vote shall be by ballot, and the

Legislature shall provide for the numbering of tickets and make such

other regulations as may be necessary to detect and punish fraud and

preserve the purity of the ballot box; and the Legislature shall provide

by law for the registration of all voters.

Tex. Const. art. VI, §§ 2(c), (4).

6. Appellees alleged in their pleadings:

1. Plaintiff NAACP of Austin is a membership organization in Travis County

that represents, and advocates on behalf of, the civil rights of African

Americans and other persons of color, particularly the voting rights of such

persons. Its president is Nelson Linder, who also brings this suit in his

personal capacity. The great majority of members of the NAACP of Austin

are residents of, and voters in, Travis County. Plaintiff NAACP of Austin

brings this suit in its representational capacity.

2. Plaintiff Sonia Santana is a citizen of Travis County, resides there, and is a

voter in Travis County. She is also a political supporter of Plaintiff David

Van Os.

3. The foregoing Plaintiffs[ ] are participants in the Travis County local

elections. They are required to use paperless computerized voting systems to

cast their votes in Travis County elections.

4. Plaintiff David Van Os is a candidate for statewide office and will appear on

the November ballot in Travis County.

7. In Miranda , the Department attached evidence in support of its plea and challenged

"conclusory allegations" found in the plaintiffs' petition. See Texas Dep't of Parks & Wildlife v.

Miranda , 133 S.W.3d 217, 222 (Tex. 2004). The Department contended that gross negligence was

a jurisdictional prerequisite to the plaintiffs' claims and that its evidence affirmatively negated gross

negligence. Id . In that context, the court considered the evidence submitted by the parties. Id . at

227-28.

8. Courts have zealously protected the right to vote. See Reynolds v. Sims , 377 U.S. 533, 555

(1964) ("The right to vote freely for the candidate of one's choice is of the essence of a democratic

society, and any restrictions on that right strike at the heart of representative government.");

Wesberry v. Sanders , 376 U.S. 1, 17 (1964) ("No right is more precious in a free country than that

of having a voice in the election of those who make the laws under which, as good citizens, we

must live. Other rights, even the most basic, are illusory if the right to vote is undermined." );

Stewart v. Blackwell , 444 F.3d 843, 862 (6th Cir. 2006) ("Few rights have been so extensively and

vigorously protected as the right to vote. Its fundamental nature and the vigilance of its defense, both

from the courts, Congress, and through the constitutional amendment process, stem from the

recognition that our democratic structure and the preservation of our rights depends to a great extent

on the franchise."); see also United States v. Mosley , 238 U.S. 383, 386 (1915) ("We regard it as

equally unquestionable that the right to have one's vote counted is as open to protection by Congress

as the right to put a ballot in a box."); Avery v. Midland County , 406 S.W.2d 422, 425 (Tex. 1966)

("Petitioner as a voter in the county has a justiciable interest in matters affecting the equality of his

voting and political rights."); Thomas Paine, Dissertation on the Principles of Government , 1795

("The right of voting . . . is the primary right by which all other rights are protected.").

9. Even if we concluded that appellees' pleadings are inadequate, we would remand to allow

appellees the opportunity to amend to cure the pleading defect. See Texas Dep't of Transp.

v. Ramirez , 74 S.W.3d 864, 867 (Tex. 2002) (citing Texas Ass'n of Bus. v. Texas Air Control Bd. ,

852 S.W.2d 440, 446 (Tex. 1993)).

10. We note that appellees' pleaded facts and Wallach's affidavit also support claims that the

eSlate does not comply with the voting system standards that voting systems must operate "safely"

and "accurately" and be "safe from fraudulent or unauthorized manipulation." See Tex. Elec. Code

Ann. § 122.001 (a)(3), (4) (West Supp. 2008).