Mi Familia Vota v. Greg Abbott, Governor, e

Case: 20-50793 Document: 00515602362 Page: 1 Date Filed: 10/14/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

October 14, 2020

No. 20-50793 Lyle W. Cayce

Clerk

Mi Familia Vota; Texas State Conference of the

NAACP; Guadalupe Torres,

Plaintiffs—Appellants,

versus

Greg Abbott, Governor of the State of Texas; Ruth

Hughs, Texas Secretary of State,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:20-CV-830

Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.

Priscilla R. Owen, Chief Judge:

Mi Familia Vota, the Texas State Conference of the NAACP

(NAACP), and Guadalupe Torres (collectively the Plaintiffs) appeal the

dismissal of their claims challenging certain Texas voting procedures during

the COVID-19 pandemic. We affirm the judgment of the district court in

part, reverse the judgment with respect to the Voting Rights Act claim, and

remand that claim.

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No. 20-50793

I

Texas officials have taken steps to mitigate the risks associated with

the COVID-19 pandemic that voters may encounter. Among these are

advisories from the Secretary of State 1 and an Executive Order issued by

Texas Governor Greg Abbott. 2

The Secretary of State’s office issued an advisory urging poll workers

to wear face masks; recommending the use of signs to urge voters to wear

face masks while at the polls; advising how to use markings or tape to

facilitate social distancing; advising how to disinfect electronic voting

equipment; suggesting that polling locations provide styluses or swabs or

pencils with erasers or coffee stirrers for voters to use instead of touching

electronic voting devices; and explaining that if a poll worker could not

identify a masked voter, the worker could ask the voter to lower the mask

briefly to facilitate identification. Other advice was offered concerning

efforts that could and should be taken to mitigate exposure to and spread of

COVID-19.

In July 2020, Governor Abbott issued Executive Order GA-29. That

order expressed his views that

• “as Texas reopens in the midst of COVID-19, increased spread

is to be expected, and the key to controlling the spread and

keeping Texans safe is for all people to consistently follow good

hygiene and social-distancing practices,”

• “due to recent substantial increases in COVID-19 positive

cases, and increases in the COVID-19 positivity rate and

1

See, e.g., Tex. Sec’y of State, Election Advisory No. 2020-19 (June 18, 2020);

Tex. Sec’y of State, Election Advisory No. 2020-14 (Apr. 6, 2020).

2

Executive Order GA-29 (July 2, 2020).

2

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hospitalizations resulting from COVID-19, further measures

are needed to achieve the least restrictive means for reducing

the growing spread of COVID-19, and to avoid a need for more

extreme measures,”

• “given the current status of COVD-19 in Texas, requiring the

use of face coverings is a targeted response that can combat the

threat to public health using the least restrictive means, and if

people follow this requirement, more extreme measures may

be avoided,” and

• “wearing a face covering is important not only to protect

oneself, but also to avoid unknowingly harming fellow Texans,

especially given that many people who go into public may have

COVID-19 without knowing it because they have no

symptoms.” 3

That Executive Order, which went into effect July 3, 2020, provided:

Every person in Texas shall wear a face covering over the nose

and mouth when inside a commercial entity or other building

or space open to the public, or when in an outdoor public space,

wherever it is not feasible to maintain six feet of social

distancing from another person not in the same household. 4

Failure to wear a mask under these conditions is punishable by a fine,

but there are eleven enumerated exceptions or exemptions, including

children younger than ten, those with medical conditions or disabilities, while

eating or drinking or while seated at a restaurant to eat or drink, while

engaging in exercise outdoors and maintaining social distancing, while voting

3

Id.

4

Id.

3

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or assisting in the voting process, and while engaging in religious worship,

“though a face covering is strongly recommended.” 5

The Plaintiffs filed suit in July, after this Executive Order issued.

They allege that Black and Latino communities have been disproportionately

impacted by COVID-19 because these communities have experienced higher

infection, hospitalization, and death rates. They assert that Texas’s policies

and laws, “individually and cumulatively, operate to deny voters the right to

vote in a safe, free, fair, and accessible election.” Plaintiffs posit that long

lines, the use of electronic voting devices rather than paper ballots, limited

curbside voting, and the permissiveness of mask-wearing at polling locations

present substantial health risks that create fear of voting and therefore

infringe upon the right to vote. The Plaintiffs asserted causes of action under

the Fourteenth Amendment’s Due Process and Equal Protection Clauses,

the First Amendment, the Fifteenth Amendment, and section Two of the

Voting Rights Act.

Plaintiffs seek robust judicial involvement in Texas’s elections,

requesting an injunction ordering that Governor Abbott and Secretary of

State Hughs take specific, affirmative actions, identified in the prayer for

relief in their Complaint, which we quote in its entirety:

a. Order Defendants to modify in-person voting

procedures during the early voting period and on Election Day

to ensure that polling sites are safe and of low risk to the health

of all registered voters, and specifically order that Defendants:

i. Extend the period of early voting to begin on

October 5, 2020.

ii. Require voters, poll-workers, persons assisting

voters, and any other person at a polling site to wear a mask,

5

Id.

4

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including providing masks to persons who do not already have

one, with exceptions only for individuals who cannot wear

masks due to a disability;

iii. Allow counties to offer extended, temporary,

and/or mobile early voting locations with flexible hours and

days.

iv. Suspend the requirement that curbside voters

must qualify as having a disability or, alternatively, order that

any voter may identify as “disabled” due to the threat that the

coronavirus poses to his or her health and life, for the purpose

of being found eligible to vote curbside.

v. Open additional polling places and provide

enough voting booths and poll workers at each polling place to

ensure that voters are not required to wait more than twenty

minutes to vote, to minimize coronavirus transmission.

vi. Staff all polling places with sufficient number

of poll workers to keep voter lines to less than 20 minutes,

including by actively recruiting new poll workers who are not

at high risk for serious illness due to COVID-19.

vii. Prohibit the closure of polling places

currently scheduled to be available on Election Day. Should a

polling place need to be closed or moved in order to meet health

and safety requirements, require that a new polling place be

made available within the same voting precinct.

viii. In counties that use electronic voting

machines, including counties that participate in the

Countywide Polling place Program, make available sufficient

numbers of both paper ballots and electronic voting machines

so that voters have the option of voting by hand-marking a

paper ballot or by voting on the electronic voting machine, to

minimize the risk of coronavirus transmission.

ix. Revise voter identification requirements to

allow voters to show identification without requiring poll

workers to physically handle identification or documentation,

5

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apply the natural disaster exception to the pandemic, and allow

voters to sign affidavits regarding the natural disaster exception

at the polling place.

x. Ensure that poll workers are given protective

gear, including masks and gloves, in sufficient quantity to allow

poll workers to change protective gear frequently. Provide poll

workers with ample opportunity to wash their hands.

b. Order Defendants to enable counties that need to

revise election policies in order to protect voters’ health to do

so, provided that the proposed revisions do not violate any

relief ordered by this Court.

c. Order Defendants to rescind or modify any voting

practice or procedure deemed by this Court to unlawfully

discriminate against Black, Latino, or other underserved voters

on the basis of a protected characteristic, to eliminate such

discrimination.

d. Order that all such relief be extended until there are

no existing cases of coronavirus in the state of Texas; or until

there is a vaccine freely and readily available to all Texans,

whichever comes sooner.

In their motion for a preliminary injunction, the Plaintiffs made clear

that the bases for the request for injunctive relief were only the First

Amendment and the Due Process Clause of the Fourteenth Amendment.

They explained that “[a]lthough Plaintiffs’ complaint also alleges violations

of the Equal Protection Clause, Fifteenth Amendment, and Section 2 of the

Voting Rights Act based on race or ethnicity, Compl. ¶¶ 202-07, those claims

do not form the basis of this motion.”

In their brief before this court, the Plaintiffs have abandoned their

request that early voting be ordered to begin on October 5, 2020, and have

narrowed their challenge to Executive Order GA-29 and four sections of the

Texas Election Code:

6

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• Executive Order GA-29, requiring masks to be worn in public places

but exempting voters and poll workers.

• Texas Election Code section 64.009, permitting voters who are

“physically unable to enter” polling locations to vote curbside.

• Texas Election Code section 43.007, permitting certain counties to

participate in Texas’s Countywide Polling Place Program if those

counties meet particular criteria, including the use of electronic voting

machines, which means that those counties do not provide paper

ballots.

• Texas Election Code sections 85.062-85.063, concerning the number

and location of polling places during early voting.

The district court granted the State’s motion to dismiss, holding that

the case presented non-justiciable political questions. Governor Abbott and

Secretary Hughs maintain that the dismissal was appropriate on other

grounds as well, including sovereign immunity and lack of standing. We

review all of these issues de novo.

II

The Supreme Court’s most recent decision addressing whether an

issue constituted a political question is Rucho v. Common Cause, in which the

Court held that claims of excessive partisanship in districting are not

justiciable. 6 In Rucho, legislatures in two states had enacted congressional

redistricting plans that were “highly partisan, by any measure.” 7 The

Supreme Court framed the issue before it as “whether there is an

6

139 S. Ct. 2484, 2491 (2019).

7

Id. at 2491.

7

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‘appropriate role for the Federal Judiciary’ in remedying the problem of

partisan gerrymandering—whether such claims are claims of legal right,

resolvable according to legal principles, or political questions that must find

their resolution elsewhere.” 8 The Court concluded that partisan

gerrymandering claims constitute political questions because they “lack

‘judicially discoverable and manageable standards for resolving [them].’” 9

The Court explained that “[f]ederal judges have no license to reallocate

political power between the two major political parties, with no plausible

grant of authority in the Constitution, and no legal standards to limit and

direct their decisions.” 10 The Court emphasized that “‘[j]udicial action

must be governed by standard, by rule,’ and must be ‘principled, rational,

and based upon reasoned distinctions’ found in the Constitution or laws.” 11

The Rucho decision strongly indicates that, by contrast, race discrimination

and Voting Rights Act claims, like those asserted by the Plaintiffs, do not

present political questions.

In Rucho, the Supreme Court recognized that “[i]n two areas—one-

person, one-vote and racial gerrymandering—our cases have held that there

is a role for the courts with respect to at least some issues that could arise

from a State’s drawing of congressional districts.” 12 The Rucho decision

recognized that “[l]aws that explicitly discriminate on the basis of race, as

well as those that are race neutral on their face but are unexplainable on

8

Id. at 2494.

9

Id.

10

Id. at 2507.

11

Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 296-97 (2004) (plurality opinion)).

12

Id. at 2495-96.

8

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grounds other than race, are of course presumptively invalid.” 13 The Court

recounted that it had applied those principles in “concluding that a challenge

to an ‘uncouth twenty-eight sided’ municipal boundary line that excluded

black voters from city elections stated a constitutional claim.” 14 Well-

established standards exist and have been applied in cases of race

discrimination but not to partisan gerrymandering, Rucho noted. “[O]ur

country’s long and persistent history of racial discrimination in voting—as

well as our Fourteenth Amendment jurisprudence . . . has reserved the

strictest scrutiny for discrimination on the basis of race.” 15

Our court has set forth the standards that govern a discriminatory

effect claim under section 2 of the Voting Rights Act:

[1] [T]he challenged standard, practice, or procedure must

impose a discriminatory burden on members of a protected

class, meaning that members of the protected class have less

opportunity than other members of the electorate to participate

in the political process and to elect representatives of their

choice, [and]

[2] [T]hat burden must in part be caused by or linked to social

and historical conditions that have or currently produce

discrimination against members of the protected class. 16

We conclude that the Plaintiffs’ racial discrimination and Voting

Rights Act claims do not present political questions. We do not consider

whether the Plaintiffs’ remaining claims constitute political questions

13

Id. at 2496.

14

Id.

15

Id. at 2502.

16

Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016).

9

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because all of their claims were properly dismissed on other grounds.

III

Governor Abbott and Secretary Hughs assert sovereign immunity

based on the Eleventh Amendment because a suit against a state official in

her official capacity is essentially a suit against the State. However, the

Supreme Court’s decision in Ex parte Young 17 allows injunctive or declaratory

relief against a state official in her official capacity, provided the official has a

sufficient “connection” with the enforcement of an allegedly

unconstitutional law. 18

We first consider the claims other than those based on the Voting

Rights Act and conclude that the Governor does not have authority to

enforce, or a role to play in enforcing, the Election Code provisions or the

executive order at issue. The Governor of Texas has no connection,

statutory or otherwise, to the enforcement of sections 64.009, 43.007,

85.062, or 85.063 of the Texas Election Code.

Governor Abbott promulgated Executive Order GA-29. But the

statutory authority under Texas Government Code § 418.012 to issue,

amend or rescind an Executive Order 19 “is not the power to enforce it,” as

17

209 U.S. 123, 157 (1908) (“In making an officer of the state a party defendant in

a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such

officer must have some connection with the enforcement of the act, or else it is merely

making him a party as a representative of the state, and thereby attempting to make the

state a party.”).

18

In re Abbott, 956 F.3d 696, 708 (5th Cir. 2020).

19

Tex. Gov. Code § 418.012 (“Under this chapter, the governor may issue

executive orders, proclamations, and regulations and amend or rescind them. Executive

orders, proclamations, and regulations have the force and effect of law.”).

10

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this court explained in In re Abbott. 20 For example, were a court to conclude

that the exclusion from the mask requirement in Executive Order GA-29 for

voters and poll workers was unconstitutional, the Governor would have no

authority to fine those who refused to wear a mask while in polling places.

Enforcement actions would be undertaken by local authorities. There is no

suggestion in any statutes or regulations that Governor Abbott has authority

to enforce or would play a role in enforcing the executive order at issue. 21

The Secretary of State of Texas similarly has no connection to the

enforcement of Executive Order GA-29, or Texas Election Code §§ 85.062-

85.063.

The Secretary of State’s connection to Texas Election Code § 43.007,

however, requires more detailed analysis. Section 43.007 requires counties

to use electronic voting devices rather than paper ballots in order to be

eligible to participate in Texas’s Countywide Polling Place Program. 22 The

Secretary of State is required by Texas Election Code § 31.014 to provide

standards for certifying electronic devices and may exclude counties whose

electronic voting devices do not meet certain standards from the Program.

Section 31.014 references section 43.007 multiple times. One relevant

subsection provides, in part, that the Secretary

shall adopt rules that require a device described by this section

used during the early voting period or under the countywide

20

956 F.3d at 709.

21

See Morris v. Livingston, 739 F.3d 749, 746 (5th Cir. 2014) (“Section 501.063 does

not specially task Governor Perry with its enforcement, or suggest that he will play any role

at all in its enforcement.”).

22

Tex. Election Code § 43.007(d)(4) (“The secretary of state shall select to

participate in the program each county that: . . . uses direct recording electronic voting

machines . . . .”).

11

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polling place program under Section 43.007 to update data in

real time. If a county uses a device that does not comply with

the rule in two consecutive general elections for state and

county officers, the secretary of state shall assess a

noncompliance fee. The noncompliance fee shall be set at an

amount determined by secretary of state rule. 23

But the Plaintiffs’ claim regarding section 43.007 is based on its

prohibition of the use of paper ballots for those counties participating in the

Countywide Polling Place Program. If a court were to conclude that

electronic voting as the exclusive means of voting was unconstitutional as

applied to the Plaintiffs, the court could order the Secretary not to enforce

that requirement. But that still would not require counties who currently are

participating in the Countywide Polling Place Program to print and use paper

ballots. The Secretary is not responsible for printing or distributing ballots. 24

That responsibility falls on local officials. It would remain their choice as to

whether to incur the expense of printing, distributing and counting paper

ballots instead of utilizing the electronic devices they already have in place.

Directing the Secretary not to enforce the electronic-voting-devices-

only provision in section 43.007 would not afford the Plaintiffs the relief that

they seek, and therefore, the Secretary of State “is not a proper defendant.” 25

Although a court can enjoin state officials from enforcing statutes, such an

injunction must be directed to those who have the authority to enforce those

statutes. In the present case, that would be county or other local officials. No

23

Tex. Election Code § 31.014(c).

24

See Tex. Election Code §§ 52.002, 31.043; see also In re Cercone, 323

S.W.3d 293, 294 (Tex. App. 2010) (pet. denied) (recognizing, in a suit regarding an election

in Dallas County, that the “Elections Administrator for Dallas County . . . is responsible

for printing and mailing the general election ballots”).

25

In re Abbott, 956 F.3d 696, 709 (5th Cir. 2020) (quoting Morris, 739 F.3d at 746).

12

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county or local official is a party to the current suit and cannot be enjoined in

this suit to print and use paper ballots.

Accordingly, with the exception of the Voting Rights Act claim, the

Eleventh Amendment bars all the claims against Governor Abbott and

Secretary Hughs. There is no sovereign immunity with respect to the Voting

Rights Act claims. Our court has held that the Voting Rights Act, “which

Congress passed pursuant to its Fifteenth Amendment enforcement power,

validly abrogated state sovereign immunity.” 26

IV

Much of the relief sought by the Plaintiffs to remedy the alleged

Voting Rights Act injuries and the injuries from alleged constitutional

violations (were they not barred by sovereign immunity) is beyond the power

of a court to grant. It is one thing for a court to strike down a law that violates

the Voting Rights Act or the Constitution and to enjoin a state official from

enforcing it. It is entirely another matter for a court to order an executive

performing executive functions, or an executive performing essentially

legislative functions, to promulgate directives mandated by the court. Of

course, federal courts may draw redistricting maps in certain limited

circumstances, 27 but that narrow exception does not provide authority for

courts to order state officials to promulgate legislation, regulations or

executive orders. Even in redistricting cases, the “primary locus of

responsibility” for promulgating legislation “does not shift” to federal

26

OCA-Greater Hous. v. Texas, 867 F.3d 604, 614 (5th Cir. 2017); see also Fusilier

v. Landry, 963 F.3d 447, 455 (5th Cir. 2020).

27

See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 415 (2006);

Wise v. Lipscomb, 437 U.S. 535, 540 (1978).

13

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courts. 28

The Texas Legislature has given Governor Abbott the authority to

issue executive orders in times of emergencies, 29 and those orders have the

force of a law. 30 But a court cannot compel the Governor to issue orders as a

means of redressing claims under the Voting Rights Act or the Constitution.

Neither the Fifteenth Amendment nor any other provision in the

Constitution permits a court to dictate to legislative bodies or executives

what laws and regulations they must promulgate.

As the Sixth Circuit has explained:

Federal Courts do have jurisdiction and power to pass

upon the constitutionality of Acts of Congress, but we are not

aware of any decision extending this power in Federal Courts

to order Congress to enact legislation. To do so would

constitute encroachment upon the functions of a legislative

body and would violate the time-honored principle of

separation of powers of the three great departments of our

Government. This principle is equally applicable to the power

of a Federal Judge to order a state legislative body to enact

legislation. The enactment of legislation is not a ministerial

function subject to control by mandamus, prohibition or the

injunctive powers of a court. 31

28

LULAC, 548 U.S. at 415.

29

Tex. Gov. Code § 418.014.

30

Tex. Gov. Code § 418.012 (“Under this chapter, the governor may issue

executive orders, proclamations, and regulations and amend or rescind them. Executive

orders, proclamations, and regulations have the force and effect of law.”).

31

Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 797 (6th Cir. 1996)

(quoting Joseph Skillken & Co. v. City of Toledo, 528 F.2d 867, 878 (6th Cir.1975), vacated

and remanded sub. nom. Joseph Skilken & Co. v. City of Toledo, Ohio, 429 U.S. 1068 (1977),

decision adhered to on remand, 558 F.2d 350 (6th Cir.1977)).

14

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In City of Taylor, the district court had ordered the City to amend its zoning

ordinance to adopt the court’s definition of “family.” 32 The Sixth Circuit

held that “the District Court exceeded its proper scope of authority when it”

did so, “remind[ing] district courts that Article III powers are finite.” 33

The Ninth Circuit has held that principles of federalism do not permit

federal courts to order relief that would require the Governor of a State to

essentially enact legislation. 34 In M.S. v. Brown, the Oregon legislature had

passed a statute permitting the issuance of driver’s cards to individuals who

could not prove they were United States citizens, 35 but the voters of that state

had exercised their referendum power to reject that legislation, and

accordingly, the law had never gone into effect. 36 The plaintiff argued that

the referendum was motivated by racial animus and sought relief ordering the

Governor of Oregon to issue driver’s cards in accordance with the legislation

that had been rejected by the voters. 37 The Ninth Circuit affirmed the district

court’s dismissal of the claims, reasoning “[i]n particular, we have explained

that ‘[p]rinciples of federalism counsel against’ awarding ‘affirmative

injunctive and declaratory relief’ that would require state officials to repeal

an existing law and enact a new law proposed by plaintiffs.” 38

32

Id.

33

Id.

34

M.S. v. Brown, 902 F.3d 1076, 1089 (9th Cir. 2018).

35

Id. at 1086.

36

Id. at 1084.

37

Id. at 1081-82.

38

Id. at 1089 (quoting Jacobson v. Tahoe Reg’l Plan. Agency, 566 F.2d 1353, 366 (9th

Cir. 1977), aff’d in part, rev’d in part on other grounds sub nom. Lake Country Estates, Inc. v.

Tahoe Reg’l Plan. Agency, 440 U.S. 391 (1979)).

15

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An examination of the relief that the Plaintiffs seek in the case before

us reveals that in many instances, court-ordered-relief would require the

Governor or the Secretary of State to issue an executive order or directive or

to take other sweeping affirmative action. If implemented by the district

court, many of the directives requested by the Plaintiffs would violate

principles of federalism.

In M.S. v. Brown, the Ninth Circuit stated in dicta that “federal courts

have jurisdiction to order a remedy requiring the enactment of legislation in

certain narrow circumstances, such as where fundamental rights are at

stake.” 39 We do not consider today whether there might be such narrow

circumstances and if so, what they might be.

V

The Plaintiffs’ Voting Rights Act claim does not present a political

question and is not barred by sovereign immunity. The remaining question

is whether relief could be granted by the district court at this time that would

redress their alleged injury, were the district court to conclude that there has

been a Voting Rights Act violation.

As discussed above, the district court would not have authority to

order the Governor or Secretary of State to promulgate regulations or

legislation. To the extent that the requests for relief specified in the

Complaint would not fall within that category of relief, we are mindful of the

Supreme Court’s repeated admonishment that “lower federal courts should

ordinarily not alter the election rules on the eve of an election.” 40

The Plaintiffs seek to overhaul Texas’s voting scheme. Early voting

39

Id. at 1087.

40

Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020).

16

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in Texas commenced October 13, 2020. The changes sought by the Plaintiffs

by and large would up-end the process. In large measure, it would be a futile

act to remand the Voting Rights Act claim for plenary consideration with

regard to the November 2020 election because it would be inappropriate for

the district court to grant much of the requested relief with the election

ongoing.

We see a possible exception, however, with regard to the November

2020 election. Were the district court to conclude that the exemption from

wearing a mask in public places contained in Executive Order GA-29 for poll

workers, voters, and others in polling places violated section 2 of the Voting

Rights Act, the district court might excise that provision if it concluded that

this would redress the injuries the Plaintiffs have alleged. It is at least

conceivable that such a remedy would not materially or substantially affect

the ongoing election, but that would be a matter for the district court to

determine.

We accordingly reverse the district court’s judgment in part and

remand the Voting Rights Act claim for further proceedings in the district

court, consistent with this opinion.

* * *

We AFFIRM the judgment of the district court in part. We

REVERSE the district court’s judgment with regard to the Voting Rights

Act claim and REMAND that claim to the district court.

17