TX Alli for Retd Amer v. Scott

Case: 20-40643 Document: 00516241854 Page: 1 Date Filed: 03/16/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

March 16, 2022

No. 20-40643 Lyle W. Cayce

Clerk

Texas Alliance for Retired Americans; Sylvia Bruni;

DSCC; DCCC,

Plaintiffs—Appellees,

versus

John Scott, in his official capacity as the Texas Secretary of State,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:20-CV-128

Before Higginbotham, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Shortly before the November 2020 election, Plaintiffs challenged

Texas’s elimination of straight-ticket voting. Agreeing with Plaintiffs’ claims

that this change unconstitutionally burdened the right to vote, the district

court enjoined the Texas Secretary of State. A motions panel of our court

stayed the injunction. We now reverse the district court’s order, vacate the

injunction, and remand for further proceedings. Because the Secretary of

State does not enforce the law that ended straight-ticket voting, Plaintiffs’

constitutional claims are barred by sovereign immunity.

Case: 20-40643 Document: 00516241854 Page: 2 Date Filed: 03/16/2022

No. 20-40643

I.

Texas House Bill 25 (HB 25) eliminated straight-ticket voting in

Texas elections. Straight-ticket or “straight-party” voting meant “cast[ing]

a vote for all the nominees of one party . . . by placing an ‘X’ in the square

beside the name of the party of [the voter’s] choice.” Tex. Elec. Code

§ 52.071(b), repealed by Act of May 20, 2017, 85th Leg., R.S., ch. 404, § 8,

2017 Tex. Gen. Laws 1081, 1083. 1 HB 25 ended that practice. It was signed

June 1, 2017, and scheduled to go into effect over three years later on

September 1, 2020. Ibid.

On August 12, 2020, Plaintiffs 2 filed suit challenging HB 25 on the

grounds that eliminating straight-ticket voting would lengthen polling lines

and therefore burden voting rights. They alleged claims under the First,

Fourteenth, and Fifteenth Amendments to the United States Constitution

and § 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. The named

defendant was the Texas Secretary of State (“the Secretary”) in her official

capacity. 3 Plaintiffs sought injunctive and declaratory relief, as well as a

preliminary injunction.

On September 25, 2020, the district court issued a preliminary

injunction based only on Plaintiffs’ constitutional undue burden claims. See

Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780

(1983). In doing so, the district court rejected the Secretary’s arguments that

the suit should be dismissed on various grounds, including issue preclusion,

1

All references to statutory sections in this opinion are to the Texas Election Code

as effective at the time of the district court’s order.

2

Plaintiffs are three organizations—the Texas Alliance for Retired Americans

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

the national congressional committee of the Democratic Party (“DCCC”)—and one

individual, Sylvia Bruni, the Chair of the Webb County Democratic Party.

3

Ruth Hughs, the Secretary when suit was filed, has been replaced by John Scott.

2

Case: 20-40643 Document: 00516241854 Page: 3 Date Filed: 03/16/2022

No. 20-40643

lack of standing, and sovereign immunity. The Secretary timely appealed and

moved for a stay pending appeal.

On September 30, 2020, a panel of our court stayed the preliminary

injunction. See Tex. All. for Retired Ams. v. Hughs, 976 F.3d 564 (5th Cir.

2020) (per curiam). The stay rested on “[t]he principle . . . [that] court

changes of election laws close in time to the election are strongly disfavored.”

Id. at 566–67 (citing Republican Nat’l Comm. v. Democratic Nat’l Comm., ---

U.S. ---, 140 S. Ct. 1205, 1207 (2020) (per curiam); North Carolina v. League

of Women Voters of N.C., 574 U.S. 927 (2014) (per curiam); Husted v. Ohio

State Conference of N.A.A.C.P., 573 U.S. 988 (2014) (per curiam); Veasey v.

Perry, 574 U.S. 951 (2019) (per curiam); Purcell v. Gonzalez, 549 U.S. 1 (2006)

(per curiam)). The panel declined to address standing, sovereign immunity,

or the merits. Id. at 567.

II.

“We review a preliminary injunction for abuse of discretion,

reviewing findings of fact for clear error and conclusions of law de novo.”

Planned Parenthood of Greater Tex. v. Kauffman, 981 F.3d 347, 354 (5th Cir.

2020) (en banc) (citation omitted). We review sovereign immunity and

standing de novo. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019),

cert. denied --- U.S. ---, 141 S. Ct. 1047 (2021); N.A.A.C.P. v. City of Kyle, 626

F.3d 233, 236 (5th Cir. 2010) (citations omitted).

III.

In addition to arguing the merits, the Secretary raises the threshold

issue of sovereign immunity. 4 Because we agree with the Secretary that

4

The Secretary also raises issue preclusion based on a prior suit involving some but

not all the present plaintiffs. See Bruni v. Hughs, 468 F. Supp. 3d 817 (S.D. Tex. 2020).

Because we resolve this appeal based on sovereign immunity, we need not reach issue

preclusion. See Gruver v. La. Bd. of Supervisors, 959 F.3d 178, 182 n.3 (5th Cir. 2020), cert.

denied, 141 S. Ct. 901 (2020) (“While Eleventh Amendment immunity is a jurisdictional

matter, . . . preclusion is not.” (citations omitted)). For the same reason, we need not reach

3

Case: 20-40643 Document: 00516241854 Page: 4 Date Filed: 03/16/2022

No. 20-40643

Plaintiffs’ constitutional claims are barred on that basis, we need not reach

the merits.

States are immune from private suits unless they consent or unless

Congress validly strips their immunity. See Sossamon v. Texas, 563 U.S. 277,

283–84 (2011) (citing Alden v. Maine, 527 U.S. 706, 715 (1999); The

Federalist No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton)); Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996); see also U.S. Const. amend.

XI. Despite this general rule, Ex parte Young permits plaintiffs to sue a state

officer in his official capacity for an injunction to stop ongoing violations of

federal law. Ex parte Young, 209 U.S. 123, 155–56 (1908); see also Whole

Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021). The officer sued must

have “some connection with the enforcement of the [challenged] act.” Young,

209 U.S. at 157 (emphasis added).

How much of a “connection” has been hard to pin down, though. See

Tex. Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (TDP)

(observing that “[our] circuit has not spoken with conviction” on this issue). 5

the Secretary’s argument that Plaintiffs lack standing. Finally, we recognize that sovereign

immunity would not pertain to Plaintiffs’ Voting Rights Act claims. See Mi Familia Vota v.

Abbott, 977 F.3d 461, 469 (5th Cir. 2020) (noting “[o]ur court has held that the Voting

Rights Act . . . ‘validly abrogated state sovereign immunity’” (quoting OCA-Greater Hous.

v. Texas, 867 F.3d 604, 614 (5th Cir. 2017))). The injunction, however, was based on

Plaintiffs’ constitutional claims only.

5

An open question is whether our court has adopted as binding precedent the

plurality view in Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), that an official

must be “specially charged with the duty to enforce the statute” and “be threatening to

exercise that duty.” Id. at 414 (plurality op.). See City of Austin, 943 F.3d at 999–1000

(citing K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010) (discussing Okpalobi); Air Evac EMS,

Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507 (2017); Morris v. Livingston,

739 F.3d 740 (5th Cir. 2014)); see also Tex. Democratic Party v. Hughs, 997 F.3d 288, 291 &

n.12 (5th Cir. 2021) (“We have not outlined a clear test for when a state official is

sufficiently connected to the enforcement of a state law so as to be a proper defendant under

Ex parte Young.”) (citing cases); Tex. Democratic Party v. Hughs, 860 F. App’x 874, 877 (5th

Cir. 2021) (per curiam) (noting our precedents in this area “do not provide as much clarity

as we would prefer”).

4

Case: 20-40643 Document: 00516241854 Page: 5 Date Filed: 03/16/2022

No. 20-40643

But some guideposts have emerged. First, an official must have more than

“the general duty to see that the laws of the state are implemented.” City of

Austin, 943 F.3d at 999–1000 (quoting Morris v. Livingston, 739 F.3d 740, 746

(5th Cir. 2014)). Second, the official must have “the particular duty to

enforce the statute in question and a demonstrated willingness to exercise

that duty.” TDP, 978 F.3d at 179 (citation omitted). This means the analysis

is “provision-by-provision”: The officer must enforce “the particular

statutory provision that is the subject of the litigation.” Ibid. (citation

omitted); see also Mi Familia Vota v. Abbott, 977 F.3d 461, 467–68 (5th Cir.

2020). “Th[at] is especially true here because the Texas Election Code

delineates between the authority of the Secretary of State and local officials.”

Ibid. Third, “enforcement” means “compulsion or constraint.” City of

Austin, 943 F.3d at 1000 (quoting K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir.

2010)). If the official does not compel or constrain anyone to obey the

challenged law, enjoining that official could not stop any ongoing

constitutional violation. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of

Workers’ Comp., 851 F.3d 507, 520 (5th Cir. 2017) (noting “significant

overlap between Article III jurisdiction, Ex parte Young, and equitable relief”

(citation omitted)).

We apply these principles to decide whether the Secretary has the

necessary connection to enforcing HB 25’s repeal of straight-ticket voting.

The Secretary argues he lacks that connection and therefore is not a proper

defendant under Ex parte Young. We agree.

As the Secretary points out, enforcement of HB 25 falls to local

election officials. HB 25 repealed election code section 52.071, which

required that a “square” for straight-ticket voting “shall be printed to the left

of each political party’s name.” Tex. Elec. Code § 52.071(a) (repealed

eff. Sept. 1, 2020) (emphasis added). Because the now-defunct statute did

not name an official, we ask whether the Secretary “actually ha[d] the

authority to enforce [it].” City of Austin, 943 F.3d at 998. Our precedent says

5

Case: 20-40643 Document: 00516241854 Page: 6 Date Filed: 03/16/2022

No. 20-40643

no. “The [Texas] Secretary [of State] is not responsible for printing

. . . ballots.” Mi Familia Vota, 977 F.3d at 468 (citing Tex. Elec. Code §§

52.002, 31.043; In re Cercone, 323 S.W.3d 293, 294 (Tex. App.—Dallas 2010,

pet. denied)). That task—and thus enforcement of section 52.071 and HB

25’s repeal of it—belongs to the authority charged with preparing the ballot:

a county clerk, county party chair, city secretary, or other local official,

depending on the type of election. See Tex. Elec. Code § 52.002(1)–(4);

Mi Familia Vota, 977 F.3d at 468 (“Th[e] responsibility [for printing ballots]

falls on local officials.”). Consequently, “directing the Secretary not to

enforce [HB 25] would not afford the Plaintiffs the relief that they seek, and

therefore, the Secretary of State is not a proper defendant.” Ibid. (cleaned

up).

Plaintiffs argue other election code provisions give the Secretary

“responsibilities” for enforcing HB 25. Not so. Principally, Plaintiffs point

to the Secretary’s “voter education” duties in section 31.012. These require

the Secretary to (1) post a notice on his website that HB 25 abolished straight-

ticket voting, Tex. Elec. Code § 31.012(a); (2) send a similar notice to

election officials, id. § 31.012(b-1); and (3) “adopt rules and establish

procedures as necessary for the [State’s] implementation of [HB 25] to

ensure that voters and county election administrators are not burdened by

the implementation,” id. § 31.012(d). None of these duties makes the

Secretary the “enforcer” of HB 25. In performing them, the Secretary does

not “compel or constrain” officials to print ballots without the straight-ticket

option. TDP, 978 F.3d at 180. Suppose a court enjoined the Secretary from

sending notices about HB 25 or from making rules to facilitate the post-HB

25 system. The Ex parte Young question is whether that injunction would

constrain election officials to restore straight-ticket voting, which is what

Plaintiffs want. The answer is no. See Mi Familia Vota, 977 F.3d at 468

6

Case: 20-40643 Document: 00516241854 Page: 7 Date Filed: 03/16/2022

No. 20-40643

(Secretary’s duties as to electronic voting did not make her proper defendant

as to claims seeking “use [of] paper ballots”). 6

Plaintiffs also rely on TDP v. Abbott, which held the Secretary was

sufficiently connected to a challenged statute that allowed voters 65-and-

older to vote by mail. 978 F.3d at 179–80. That decision relied on the

Secretary’s duty to design the mail-in ballot application form. Ibid.; see Tex.

Elec. Code § 31.002. But Plaintiffs miss a key distinction between that

case and this one. In TDP, local election officials were required to use the

Secretary’s form, so an injunction ordering the Secretary to revise the form

would have constrained those officials. See 978 F.3d at 179–80. Not so here.

Plaintiffs have identified no duty of the Secretary that constrains election

officials with respect to the straight-ticket option on ballots.

It is true, as Plaintiffs point out, that the Secretary plays a role in

designing write-in and provisional ballots. See Tex. Elec. Code

§ 105.002(c) (write-in ballots) (repealed eff. Sept 1, 2021); id. § 124.006

(provisional ballots). But Plaintiffs fail to show how these duties relate to

voting at polling locations. Plaintiffs also overstate the Secretary’s role in

designing electronic ballots. Yes, the Secretary has discretion to alter the form

and content of electronic ballots, but that discretion is cabined to encoding

ballots (prepared by local officials) for compatibility with an electronic voting

system. Id. § 52.075(a). Plaintiffs fail to show how that clerical discretion is a

duty at all, much less a duty tied to the inclusion of a straight-ticket voting

option on ballots. See TDP, 978 F.3d at 179.

Finally, Plaintiffs rely on the Secretary’s “expansive duties” in

enforcing election laws—such as his role as “chief election officer,” Tex.

6

For the same reasons, we reject Plaintiffs’ reliance on the Secretary’s duty to

“prescribe the form and content of the instruction poster” at polling places, which must

instruct voters on “marking and depositing the ballot.” Tex. Elec. Code § 62.011(b),

(c)(1). Enjoining the Secretary from explaining HB 25 on the instructional poster would do

nothing to restore straight-ticket voting.

7

Case: 20-40643 Document: 00516241854 Page: 8 Date Filed: 03/16/2022

No. 20-40643

Elec. Code § 31.001, his duty to “obtain and maintain uniformity” in the

laws’ application, id. § 31.003, and his authority to “take appropriate action

to protect” voting rights, id. § 31.005. None of these statutes creates the

relevant connection between the Secretary and HB 25. Such “general duties

under the [Texas Election] Code” fail to make the Secretary the enforcer of

specific election code provisions. TDP, 978 F.3d at 180 (citing Tex. Elec.

Code §§ 31.003–.004). 7 More is needed—namely, a “connection to the

enforcement of the particular statutory provision that is the subject of the

litigation.” Ibid; see also City of Austin, 943 F.3d at 999–1000 (distinguishing

“general duty” to implement state law from “particular duty to enforce the

statute in question” (quoting Morris, 739 F.3d at 746)). The district court

arrived at the opposite conclusion, relying mistakenly on OCA-Greater

Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017). But that decision

addressed only standing and has no bearing on the Ex parte Young analysis.

See id. at 614 (“Sovereign immunity has no role to play here.”). The general

duties referenced by Plaintiffs fail to show the Secretary’s particular duty to

enforce HB 25. 8

In sum, the Secretary is not a proper defendant under Ex parte Young.

7

See also Bullock v. Calvert, 480 S.W.2d 367, 371–72 (Tex. 1972) (Reavley, J.)

(rejecting argument that Secretary’s role as “chief election officer” or his duty to

“maintain uniformity” in application of election laws is “a delegation of authority to care

for any breakdown in the election process”); In re Hotze, 627 S.W.3d 642, 646 (Tex. 2020)

(Blacklock, J., concurring) (same).

8

For those reasons, we must respectfully disagree with our esteemed colleague’s

erudite dissenting opinion. See post, at 2.

8

Case: 20-40643 Document: 00516241854 Page: 9 Date Filed: 03/16/2022

No. 20-40643

IV.

We REVERSE the district court’s order, VACATE the preliminary

injunction, and REMAND for further proceedings consistent with this

opinion. 9

9

Plaintiffs’ pending motion to dismiss the appeal as moot due to the alleged

expiration of the injunction is DENIED. Even assuming the injunction expired, we can

review under the collateral order doctrine the order denying the Secretary sovereign

immunity. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141

(1993). And even if the appeal were moot, the remedy would be the same as the one we

order here—vacatur. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).

9

Case: 20-40643 Document: 00516241854 Page: 10 Date Filed: 03/16/2022

No. 20-40643

Patrick E. Higginbotham, Circuit Judge, dissenting:

I must dissent with this case as well as its companion cases. 1 None

present an issue of sovereign immunity, as the Eleventh Amendment does

not bar these claims under the Fourteenth Amendment. Our issue is rather

the antecedent question of Article III standing, turning on injury and redress-

ability.

I.

I write to remind failing memories of the signal role of Ex parte Young

in directly policing the path of cases and controversies to the Supreme Court

from our state and federal courts and warn against its further diminution. 2 As

I explained over twenty years ago in Okpalobi v. Foster, “Ex parte Young poses

no threat to the Eleventh Amendment or to the fundamental tenets of feder-

alism. To the contrary, it is a powerful implementation of federalism neces-

sary to the Supremacy Clause, a stellar companion to Marbury and Martin v.

Hunter’s Lessee.” 3 Just as then, “the destination of the majority’s trek today

is inevitably a narrowing of the doctrine of Ex parte Young . . . I decline pas-

sage on that voyage. I decline because I am persuaded that familiar principles

1

Lewis v. Scott, No. 20-50654, --- F.4th ---, (5th Cir. March 16, 2022); Richardson

v. Scott, No. 20-50774, --- F. 4th ---, (5th Cir. March 16, 2022).

2

209 U.S. 123 (1908).

3

Okpalobi v. Foster, 244 F.3d 405, 432 (5th Cir. 2001) (Higginbotham, J.

concurring).

10

Case: 20-40643 Document: 00516241854 Page: 11 Date Filed: 03/16/2022

No. 20-40643

of standing are better suited to answer these questions with less risk to the

vital role of Ex parte Young.” 4

The majority continues this Court’s effort to shrink the role of Ex

parte Young, by overly narrow readings of the state officer’s duty to enforce

Texas’s election laws. Unlike in Okpalobi “where the defendants had no en-

forcement connection with the challenged statute,” 5 the Texas Secretary of

State is the “chief election officer of the state” and is directly instructed by

statute to “obtain and maintain uniformity in the application, operation, and

interpretation of this code and of the election laws outside this code.” 6 More-

over, the Secretary is charged to “take appropriate action to protect the vot-

ing rights of the citizens of this state from abuse by the authorities adminis-

tering the state’s electoral processes” and “to correct offending conduct.” 7

Although recent decisions by this Court have split hairs regarding the level

of enforcement authority required to satisfy Ex parte Young, 8 the Secretary is

charged to interpret both the Texas Election Code and the election laws out-

side the Code, including federal law, to gain uniformity, tasks it is clearly

4

Id.

5

OCA-Greater Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017).

6

Tex. Elec. Code § 31.001(a) and Tex. Elec. Code § 31.003.

7

Tex. Elec. Code § 31.005(a), (b).

8

Compare Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir. 2020); City of Austin v.

Paxton, 943 F.3d 993, 1002 (5th Cir. 2019); Morris v. Livingston, 739 F.3d 740, 746 (5th Cir.

2014) with Texas Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020); Texas Democratic

Party v. Abbott, 961 F.3d 389, 401 (5th Cir. 2020); Fusilier v. Landry, 963 F.3d 447, 455 (5th

Cir. 2020); OCA-Greater Houston, 867 F.3d at 613–14.

11

Case: 20-40643 Document: 00516241854 Page: 12 Date Filed: 03/16/2022

No. 20-40643

bound to do. 9 The allegation in these cases is that the Secretary is failing in

that duty. This charge should satisfy our Ex parte Young inquiry.

II.

None other than the inimitable Charles Alan Wright saw Ex parte

Young as “indispensable to the establishment of constitutional government

and the rule of law.” 10 Professor Wright’s views, drawn as they were from a

lifetime of disciplined study stand on their own, gaining their strength from

years of recording judicial performance and the currency of our system by the

teachings of the Constitutional Convention and the acts of our first Congress.

This is the wisdom of a scholar and practitioner, here grounded by the reality

that Ex parte Young brings the axis necessary for the courts to harness the

power vested in them by the Constitutional Convention of 1787—the direc-

tion of the flow to the Supreme Court of challenges to the validity of state

action, a function essential to the splitting of the atom of sovereignty in a sov-

ereign nation of sovereign states in a young republic and today.

The three-judge district courts, with direct appeal to the Supreme

Court, were quickly established as a needed counter to the reach of Ex parte

Young. 11 And with this concern faded by the creation of three-judge district

9

See Texas Democratic Party, 961 F.3d at 401; City of Austin, 943 F.3d at 1002.

10

Charles Alan Wright & Mary Kay Kane, Law of Federal Courts 14 (6th ed. 2002).

11

36 Stat. 557; Michael E. Solimine, The Strange Career of the Three-Judge District

Court: Federalism and Civil Rights, 1956–76, 72 CASE W. RES. L. REV. __, *4–5

(forthcoming); Barry Friedman, The Story of Ex parte Young, in Federal Courts

Stories 269–71 (Vicki C. Jackson and Judith Resnick ed., 2010).

12

Case: 20-40643 Document: 00516241854 Page: 13 Date Filed: 03/16/2022

No. 20-40643

courts, there came a list of seminal decisions protecting civil liberties, long

and distinguished. 12 Recall that it was a three-judge district court, with its

injunctive power, that brought Brown v. Board of Education to the federal

courts, sustaining the integration of public schools. 13

III.

Another strand of history completes the relevant frame for this state-

federal tension. While the need for a Supreme Court was never an issue for

the delegates at the Constitutional Convention, as its absence was a driving

force for its convening, whether to create a tier of lower courts divided the

delegates. The cornerstone Madisonian Compromise resolved the im-

passe—authorizing Congress to create the lower federal courts. And it did,

over resistance born of a concern of potential federal court intrusion into state

affairs, the work of its judiciary. That lingering concern of the Convention

led the first Congress to enact the Anti-Injunction Act: providing that “a writ

12

See e.g., Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S.

510 (1925), aff’g Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary 296 F. 928

(D. Ore. 1924); W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), aff’g Barnette

v. W. Virginia State Bd. of Educ., 47 F. Supp. 251, 252 (S.D.W. Va. 1942); Baker v. Carr,

369 U.S. 186 (1962), rev’g Baker v. Carr, 179 F. Supp. 824 (M.D. Tenn. 1959); Younger v.

Harris, 401 U.S. 37 (1971), rev’g Harris v. Younger, 281 F. Supp. 507, 508 (C.D. Cal. 1968);

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), rev’g Rodriguez v. San Antonio

Indep. Sch. Dist., 337 F. Supp. 280, 281 (W.D. Tex. 1971); Roe v. Wade, 410 U.S. 113 (1973),

aff’g Roe v. Wade, 314 F. Supp. 1217, 1219 (N.D. Tex. 1970).

13

347 U.S. 483 (1954); Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 98 F.

Supp. 797 (D. Kan. 1951), rev’d sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294

(1955). See also Briggs v. Elliot, 98 F. Supp. 529 (E.D.S.C. 1951) and Davis v. County School

Bd., 103 F. Supp. 337 (E.D. Va. 1952).

13

Case: 20-40643 Document: 00516241854 Page: 14 Date Filed: 03/16/2022

No. 20-40643

of injunction [shall not] be granted to stay proceedings in any court of a

state,” assuring direct review of state courts by the Supreme Court. 14 An ex-

ception clause later added: “except as expressly authorized by Act of Con-

gress, or where necessary in aid of its jurisdiction, or to protect or effectuate

its judgments.” 15 And there it rested, through the Civil War with its attend-

ing Constitutional amendments.

With the turn of the century, we entered the Lochner period, charac-

terized by federal injunctions blocking state efforts to address social issues in

the rising industrial world. 16 It is significant that from Reconstruction to the

Lochner era, lawyers seldom reached for § 1983 given its inclusion of the lan-

guage of the Privileges and Immunities Clause, language neutered in the

Slaughterhouse cases. 17 In more recent times, § 1983 came to be a major path-

way to the lower federal courts, prompting challenges to its injunctive power

as violating the Anti-Injunction Act. The Supreme Court’s response sheds

light on the wielding and melding of federal injunctions and our federalism.

From these threads of history, the Supreme Court in Mitchum v. Foster

laid bare the subtle relationship of the Anti-Injunction Act, § 1983, and Ex

parte Young. The Court saw the then sixty-four-year-old Ex parte Young as a

critical valve to direct the flow of cases from the state courts to the Supreme

14

1 Stat. 334 § 5 (1793).

15

28 U.S.C.A. § 2283 (West).

16

Lochner v. New York, 198 U.S. 45 (1905).

17

83 U.S. 36 (1872).

14

Case: 20-40643 Document: 00516241854 Page: 15 Date Filed: 03/16/2022

No. 20-40643

Court. 18 Justice Stewart explained that “Section 1983 was thus a product of

a vast transformation from the concepts of federalism that had prevailed in

the late 18th century when the anti-injunction statute was enacted.” 19 Con-

gress was “concerned that state instrumentalities could not protect those

rights; it realized that state officers might, in fact, be antipathetic to the vin-

dication of those rights; and it believed that these failings extended to the

state courts.” 20 He continued:

The very purpose of § 1983 was to interpose the federal courts

between the States and the people, as guardians of the people’s

federal rights—to protect the people from unconstitutional ac-

tion under color of state law, “whether that action be execu-

tive, legislative, or judicial.” 21

Mitchum v. Foster is itself a contemporary example of the on-going allocation

of the flow of cases to the Supreme Court from the state courts and the Con-

gressionally created lower federal courts, as well as the role of Ex parte Young

in that cast.

In sum, Ex parte Young, birthed as a tool of the Lochner period, proved

its effectiveness in sustaining challenges to state efforts to protect workers.

Mitchum v. Foster presents as a parallel—protecting civil rights—giving to

18

Mitchum v. Foster, 407 U.S. 225, 242 (1972).

19

Id.; 42. U.S.C. § 1983.

20

Mitchum, 407 U.S. at 242.

21

Id. (quoting Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 (1879)).

15

Case: 20-40643 Document: 00516241854 Page: 16 Date Filed: 03/16/2022

No. 20-40643

civil rights claimants a § 1983 with the power of the injunction, albeit not al-

ways a path around the Eleventh Amendment.

IV.

Here however, as it was in Okpalobi, the threshold question is stand-

ing, the Article III door to the federal courthouse, which the majority stepped

past. Standing doctrine was a product of the shift to the public law model.

With its focus upon injury and redressability, it rejected an ombudsman role

for the federal courts. Here, as all three of our cases bring claims of constitu-

tional violation under § 1983, there is no immunity issue, no necessary role

for Ex parte Young. 22 As the state has no immunity from enforcement of the

Fourteenth Amendment here, 23 the remaining inquiry is standing—itself a

constitutional demand of injury and redressability. 24

Under a proper Article III analysis, these suits have a redressable in-

jury because the Secretary is directed by the election laws of Texas to inter-

pret and conform the election code to other election laws (as federal law is

state law). Power to interpret to gain uniformity with state and federal law is

22

These three cases also present claims under the Voting Rights Act and the

Americans with Disabilities Acts, where Congress has specifically abrogated state

sovereign immunity. See e.g., Tennessee v. Lane, 541 U.S. 509, 534 (2004); Fusilier, 963 F.3d

at 455; OCA-Greater Houston, 867 F.3d at 614.

23

Reynolds v. Sims, 377 U.S. 533, 537 (1964); Fitzpatrick v. Bitzer, 427 U.S. 445, 454

(1976).

24

E.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

16

Case: 20-40643 Document: 00516241854 Page: 17 Date Filed: 03/16/2022

No. 20-40643

power to enforce. 25 And “our precedent suggests that the Secretary of State

bears a sufficient connection to the enforcement of the Texas Election

Code . . . to support standing.” 26 Again, the claim is that the Secretary failed

to discharge that duty or has done so in an unconstitutional manner. These

claims can proceed if there is standing with its requirement of injury and re-

dressability.

In sum, I am persuaded that these cases ought not fail on standing or

sovereign immunity grounds. Rather, we should have fully considered the

merits of the plaintiffs’ arguments, especially where these cases also present

claims under the Voting Rights Act and Americans with Disabilities Act, thin

though they all may be. 27

V.

Even this quick glance back sheds light on threshold questions of the

role of the Court in protecting the most vital Constitutional right of a demo-

cratic government: the right to vote. And so, I am troubled by this Court’s

narrowing of Ex parte Young. Ex parte Young is no culprit. 28

25

Tex. Elec. Code § 31.001(a) and Tex. Elec. Code § 31.003. See Testa v. Katt, 330

U.S. 236 (1947).

26

Texas Democratic Party, 961 F.3d at 401 (citing OCA-Greater Hous., 867 F.3d at

613).

27

See e.g., Lane, 541 U.S. at 534; Fusilier, 963 F.3d at 455; OCA-Greater Houston,

867 F.3d at 614.

28

Okpalobi, 244 F.3d at 432.

17

Case: 20-40643 Document: 00516241854 Page: 18 Date Filed: 03/16/2022

No. 20-40643

About this we can agree, partisan views ought to prevail by persuading

voters, not by denying their right to vote. With respect to my able colleagues,

I must dissent.

18