Texas Democratic Party v. Ruth Hughs

Case: 20-50683 Document: 00515626547 Page: 1 Date Filed: 11/04/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

November 4, 2020

No. 20-50683 Lyle W. Cayce

Clerk

Texas Democratic Party; Democratic Senatorial

Campaign Committee; Democratic Congressional

Campaign Committee; Emily Gilby; Terrell Blodgett,

Plaintiffs—Appellees,

versus

Ruth Hughs, in her official capacity as the Texas Secretary of State,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No: 1:19-CV-1063

USDC No. 1:19-CV-1154

Before Higginbotham, Smith, and Oldham, Circuit Judges.

Per Curiam:*

Plaintiffs sued the Texas Secretary of State Ruth Hughs, challenging

the regulation of early voting polling places under § 85.064 of Texas’s

Election Code, as modified by Texas House Bill 1888. The Secretary moved

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-50683 Document: 00515626547 Page: 2 Date Filed: 11/04/2020

20-50683

to dismiss and argued in part that she enjoyed sovereign immunity from

Plaintiffs’ claims. The district court denied the Secretary’s motion, rejecting

her sovereign immunity argument, and the Secretary subsequently filed this

interlocutory appeal. Plaintiffs now move for summary affirmance of the

district court’s denial of immunity because the Secretary has some

connection with the enforcement of § 85.064, making her a proper defendant

under Ex parte Young. 1

The reach of Ex parte Young, and in particular the scope of the

Secretary’s enforcement connection to various provisions of the Texas

Election Code, has been the subject of many recent appeals before this Court.

Our case law, however, has not conclusively established the bounds of the

“some connection” requirement, with some panels finding some connection

between the Secretary and a challenged provision and others concluding the

opposite. 2 Because this is an issue that warrants fuller consideration by a

merits panel, we cannot at this point say Plaintiffs’ argument that the

Secretary has the requisite connection to § 85.064 is “clearly right as a matter

of law so that there can be no substantial question as to the outcome of the

case.” 3 We therefore deny Plaintiffs’ motion for summary affirmance.

1

209 U.S. 123, 157 (1908).

2

See, e.g., Tex. Democratic Party v. Abbott, No. 20-50407, 2020 WL 6127049, at *6-7 (5th Cir. Oct.

14, 2020) (finding some connection to § 82.003); Tex. Democratic Party v. Abbott, 961 F.3d 389, 401

(5th Cir. 2020) (same); Mi Familia Vota v. Abbott, No. 20-50793, 2020 WL 6058290, at *4-5 (5th

Cir. Oct. 14, 2020) (finding no connection to §§ 43.007, 85.062, or 85.063).

3

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969); see also Tex. Democratic Party

v. Hughs, 974 F.3d 570, 570-71 (5th Cir. 2020).

2