Cascino v. Nelson

Case: 22-50748 Document: 00516884698 Page: 1 Date Filed: 09/06/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

September 6, 2023

No. 22-50748 Lyle W. Cayce

____________ Clerk

Joseph Daniel Cascino; Shanda Marie Sansing; Brenda

Li Garcia,

Plaintiffs—Appellants,

versus

Jane Nelson, Texas Secretary of State,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:20-CV-438

______________________________

Before Jones, Stewart, and Duncan, Circuit Judges.

Per Curiam:*

Prior to this appeal, Plaintiffs, Joseph Daniel Cascino, Shanda Marie

Sansing, and Brenda Li Garcia, sought and obtained a preliminary injunction

from the district court, on grounds that a Texas election law was

unconstitutional as applied during the COVID-19 pandemic. The particular

law at issue only allowed mail-in voting for adults 65 and older without

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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excuse. This court rejected that argument in a decision vacating the

injunction and remanding the case to the district court. See Tex. Democratic

Party v. Abbott, 978 F.3d 168 (5th Cir. 2020) (“TDP II”). Now this case is

back before us on review; but this time, the argument is slightly different.

Plaintiffs now argue that the same election law is facially unconstitutional

notwithstanding COVID-19 concerns. Recognizing the language in our prior

decision, the district court dismissed their claim. Because our caselaw

forecloses this issue and there has been no intervening change of law, we

AFFIRM.

I. Background1

Texas voters are generally required to cast their ballots in person

unless they face a particular circumstance or hardship that is expressly

provided for in the state’s election code. See Tex. Elec. Code §§ 82.001–

.004. If, on election day, the voter (1) anticipates their absence from a county

of residence, id. at § 82.001; (2) has a sickness or physical condition that

prevents them from showing up to the polls without a likelihood of injury or

a need for assistance or is expecting to give birth within three weeks before

or after election day, id. at § 82.002; (3) is 65 or older, id. at § 82.003; or (4)

incarcerated, id. at § 82.004, the voter may apply to cast his ballot by mail.

See In re State of Tex., 602 S.W.3d 549, 559 (Tex. 2020).

Plaintiffs are Texas voters who are between the ages of 20 and 60 and

want to cast mail-in ballots. They argue that Texas’s age-based eligibility for

casting mail-in ballots violates the Twenty-Sixth Amendment, which

provides that “[t]he right of citizens of the United States, who are eighteen

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1

The extensive background underlying this case is thoroughly described in our

previous opinion and briefly summarized here for purposes of completeness. See TDP II,

978 F.3d at 174–76.

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years of age or older, to vote shall not be denied or abridged by the United

States or by any State on account of age.” U.S. Const. amend. XXVI § 1.

According to Plaintiffs, their right to vote is “abridged” because § 82.003

extends the opportunity to vote by mail to a group “solely on the basis of their

age.”2

Plaintiffs brought the instant federal suit against several state officials

including the Secretary of State.3 They alleged that the age-based condition

was both “unconstitutional as applied to these Plaintiffs during the

pandemic” and “facially unconstitutional.” Plaintiffs subsequently filed a

motion for a preliminary injunction regarding their as-applied claim. Their

claim focused on the added challenges to voting that arose from the spread of

COVID-19 during an election year. They sought to enjoin the state from

denying mail-in ballots to otherwise eligible voters under the age of 65. In

reviewing this claim, the district court, applying strict scrutiny, held that

Plaintiffs “established that they are likely to succeed on their as applied

Twenty-Sixth Amendment claim,” and entered the injunction.

The state officials appealed and sought an emergency motion for a stay

pending appeal. Tex. Democratic Party v. Abbott, 961 F.3d 389, 394 (5th Cir.

2020) (“TDP I”). A motions panel of this court granted the motion to stay,

and ultimately vacated the injunction. Id. at 412. As to the as-applied

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2

Plaintiffs first presented a similar constitutional argument in state court at the

onset of the COVID-19 pandemic. They sought a declaration that Texans who needed to

socially distance could vote by mail under the notion that the risk of contracting COVID-

19 was sufficient to meet the “physical condition” category under § 82.002. State of Tex.,

602 S.W.3d at 551. The Supreme Court of Texas held that “a lack of immunity to COVID-

19 is not itself a ‘physical condition’ for being eligible to vote by mail within the meaning of

§ 82.002(a).” Id. at 560.

3

Although there were other defendants in this suit, Plaintiffs bring their appeal

only against the Secretary of State.

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challenge, it determined that rational basis review, rather than strict scrutiny,

was the proper standard because the right to a mail-in ballot was at stake

rather than the right to vote. TDP I, 961 F.3d at 408–09 (citing McDonald v.

Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807–08 (1969)). Because

there was “no evidence that Texas [] denied or abridged” the right to vote,

the panel concluded that Plaintiffs failed to show a substantial likelihood of

success on the merits, and the injunction was stayed pending merits review.4

TDP I, 961 F.3d at 409 (emphasis omitted).

Later when their appeal came before the merits panel, Plaintiffs

defended the preliminary injunction “only on Twenty-Sixth Amendment

grounds.” TDP II, 978 F.3d at 176. The panel first grappled with the lack of

clarity in Plaintiffs’ briefing. Based on the nature of their arguments, it was

unclear whether Plaintiffs were still challenging the law’s constitutionality in

the pandemic context or whether they were abandoning their as-applied

challenge for the facial challenge. Id. at 177. Despite this lack of clarity, the

panel cabined its review to the district court order properly before it. Id. at

177–78. As stated, that order solely addressed the as-applied challenge—i.e.,

it considered the constitutionality of § 82.003 in light of COVID-19 concerns.

After establishing standing, ripeness, and the inapplicability of the political

question doctrine, the court held that, contrary to the district court’s

conclusions, § 82.003 does not run afoul of the Twenty-Sixth Amendment

because “conferring a benefit on another class of voters does not deny or

abridge” other individuals’ right to vote. Id. at 194. As such, it vacated the

injunction and remanded the case to the district court.5 Id.

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4

Plaintiffs’ writ of certiorari to the Supreme Court in response to this decision was

denied. Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (2020).

5

Plaintiffs also filed a writ of certiorari to the Supreme Court on this decision,

which was denied. Tex. Democratic Party v. Abbott, 141 S. Ct. 1124 (2021).

4

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On remand, Plaintiffs filed a second amended complaint.6 It alleged

that § 82.003, alone and considered alongside upcoming election policies and

future pandemic conditions, was unconstitutional, both as applied and

facially. As to the allegations regarding future laws and conditions, the

district court held that Plaintiffs lacked standing and that their claims were

unripe and precluded by sovereign immunity. As to Plaintiffs’ allegations

based on current harm, the district court dismissed them on the merits.

Pertinent here, it held that this court’s decision in TDP II foreclosed

Plaintiffs’ Twenty-Sixth Amendment claim, “as a matter of law,” and that

the “law of the case” doctrine precluded it from relitigating this issue. The

suit was dismissed in its entirety, and Plaintiffs timely appealed. On appeal,

Plaintiffs’ arguments rely only on a facial challenge of the Twenty-Sixth

Amendment claim against the Secretary. Specifically, they argue that the

election law’s age-based requirement is unconstitutional, and the district

court erred in dismissing their claims based on the rule of orderliness and the

law of the case doctrine.

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6

Intervening as plaintiffs, the League of United Latin American Citizens and the

Texas League of United Latin American Citizens also filed a complaint. When the

Secretary moved to dismiss Plaintiffs’ complaint, it moved to dismiss the intervenors’

complaint as well. The district court addressed the claims congruently in both complaints

when it dismissed the suit based on a failure to state a claim. Nevertheless, only Plaintiffs

(i.e., Cascino, Sansing, and Garcia) appealed.

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II. Standard of Review

When a district court dismisses a claim pursuant to 12(b)(6), this court

conducts a de novo review of that judgment on appeal. Walker v. Beaumont

Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019). A “claim[] may be

dismissed under Rule 12(b)(6) ‘on the basis of a dispositive issue of law.’”

Id. (quoting Neitzke v. Williams, 490 U.S. 319, 326 (1989)). It may also be

dismissed “if the complaint does not contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In our review, we “must

accept all well-pleaded facts as true, and . . . view them in the light most

favorable to the plaintiff.” Id. at 735 (quoting Campbell v. Wells Fargo Bank,

N.A., 781 F.2d 440, 442 (5th. Cir. 1986)).

Finally, whether the law of the case doctrine “forecloses any of the

district court’s actions on remand” warrants de novo review. Deutsche Bank

Nat’l Tr. Co. v. Burke, 902 F.3d 548, 551 (5th Cir. 2018) (quotation omitted).

III. Discussion

In this appeal, Plaintiffs seek to prevent preliminary barriers to the

court’s review of their facial challenge to the age-based election law.

Specifically, they assert that: (1) they have standing to bring this claim; (2)

that this claim is ripe for review; and (3) that this claim is not barred by

sovereign immunity. Plaintiffs highlight that, unlike some of their claims that

were dismissed for these reasons on remand, their facial challenge does not

ask the court to “consider potential future legislation or evaluate the

potential impact of the pandemic in future elections.” They also point to this

court’s prior decision in TDP II holding that they had standing to challenge

the election law and that the Secretary had a sufficient connection to the

enforcement of the election law to preclude sovereign immunity. See TDP II,

978 F.3d at 178. In response to these arguments, the State concedes that the

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facial challenge “is ripe and that TDP II establishes [that] [P]laintiffs have

standing to bring this claim and that it is not barred by the Secretary’s

sovereign immunity.” The parties, therefore, agree that this appeal is

properly before this court for review of the merits.

The single merits question before us is whether the Twenty-Sixth

Amendment prohibits the State from providing access to mail-in ballots for

those 65 and older to the exclusion of younger voters.7 As stated, a prior panel

vacated a preliminary injunction arising from Plaintiffs’ challenge to the

election law as applied during the perils of the COVID-19 pandemic. See TDP

II, 978 F.3d at 177–78. In that decision, the court held that “the Texas

Legislature’s conferring a privilege to those at least age 65 to vote absentee

did not deny or abridge younger voters’ rights who were not extended the

same privilege.” Id. at 192. It then stated that “[§] 82.003 itself does not

violate the Twenty-Sixth Amendment.” Id. The district court held that this

decision foreclosed its review of the facial challenge to § 82.003 and holding

otherwise would violate the law of the case doctrine.

A. Rule of Orderliness

Plaintiffs first argue that TDP II does not foreclose their current

appeal because “the preliminary injunction review panel disclaimed ruling

on the facial challenge presented in this appeal.” As such, they contend that

the rule of orderliness does not apply to their facial challenge. On the other

hand, the State argues that the district court did not err in holding that TDP

II binds the outcome of the central question of this appeal, regardless of

whether Plaintiffs now bring a facial or as-applied challenge. According to the

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7

As the State notes, Plaintiffs have abandoned all other claims against all other

defendants. See also Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th

Cir. 1987) (holding that an appellant abandons claims on appeal by failing to identify any

error in the district court’s analysis).

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State, even though the prior panel did not ultimately decide Plaintiffs’ facial

challenge to § 82.003 because it was not the exact question before it, the

holding in TDP II “did not turn on the facts of the pandemic.” We agree with

the State that TDP II already answered the question that Plaintiffs attempt to

relitigate now, and thus the rule of orderliness must apply.

Under the rule of orderliness, we may not overrule controlling

precedent unless there is “an intervening change in the law, such as a

statutory amendment or a decision from either the Supreme Court or our en

banc court.” Thompson v. Dall. City Attorney’s Off., 913 F.3d 464, 467 (5th

Cir. 2019). In other words, the rule of orderliness applies when a prior panel

decision already answers the issue before us. See Newman v. Plains All Am.

Pipeline, L.P., 23 F.4th 393, 400 (5th Cir. 2022) (explaining that the rule of

orderliness “binds us to follow a prior panel’s decision on an issue”);

McClain v. Lufkin Indus., Inc., 649 F.3d 374, 385 (5th Cir. 2011). TDP II is a

published opinion that provides a substantive analysis of whether § 82.003’s

age-based requirement is violative of the Twenty-Sixth Amendment.

Although the prior panel cabined its analysis to the as-applied question that

was the only dispute on review, it noted that the analysis necessarily required

it to answer generally “whether the law denies or abridges [Plaintiffs’] right

to vote based on age.” TDP II, 978 F.3d at 182. It further stated throughout

the decision that “[r]egardless of whether [Plaintiffs brought] a facial or as-

applied challenge, [the] analysis does not turn on the effect of the pandemic.”

Id.

In deciding to vacate the preliminary injunction on § 82.003, this

court went step-by-step through the exact analysis that would apply to a facial

challenge. It first determined that “the Twenty-Sixth Amendment confers

an individual right to be free from the denial or abridgment of the right to vote

on account of age.” Id. at 184. It then established the scope of the

Amendment’s protection by distinguishing a right to vote from the right to

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an absentee ballot. Id. at 188. Based on its interpretation of the terms

“denied” and “abridged,” the panel made clear that “an election law

abridges a person’s right to vote . . . only if it makes voting more difficult for

that person than it was before the law was enacted or enforced.” TDP II, 978

F.3d at 191. A law, such as the one at issue here, which “makes it easier for

others to vote does not abridge any person’s right to vote for the purposes of

the Twenty-Sixth Amendment.” Id. In its concluding language, the panel

explicitly stated that Ҥ 82.003 itself does not violate the Twenty-Sixth

Amendment.” Id. at 192. It was not until after the panel drew this conclusion

that it considered whether the pandemic affected its analysis for purposes of

resolving the as-applied challenge. Id. Thus, the scope of the mandate in TDP

II prevents this panel from departing from that holding and ruling in

Plaintiffs’ favor on their facial challenge.

What’s more, Plaintiffs do not point to any intervening law that we

may rely on to sway from our precedent. See McClain, 649 F.3d at 385. As

such, like the district court, we reject Plaintiffs’ attempt to relitigate these

issues and hold that the rule of orderliness applies. See Thompson, 913 F.3d at

467.

B. Law of the Case Doctrine

Plaintiffs alternatively argue that the district court erred in applying

the mandate of TDP II because that decision was clearly erroneous and

following it would constitute a manifest injustice. We disagree. Under the law

of the case doctrine, “an issue of law or fact decided on appeal may not be

reexamined either by the district court on remand or by the appellate court

on a subsequent appeal.” McClain, 649 F.3d at 385 (quoting Fuhrman v.

Dretke, 442 F.3d 893, 896 (5th Cir. 2006)). “The district court may only

deviate from the mandate if one of the exceptions to the law of the case

doctrine applies.” Fuhrman, 442 F.3d at 897. Those exceptions include: “(i)

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the evidence on a subsequent trial was substantially different, (ii) controlling

authority has since made a contrary decision of the law applicable to such

issues, or (iii) the decision was clearly erroneous and would work a manifest

injustice.” Id. (quoting United States v. Becerra, 155 F.3d 740, 752–53 (5th

Cir. 1998)).

According to Plaintiffs, the prior panel in TDP II, “significantly

departed from well-established law” when it failed to read the Twenty-Sixth

Amendment “consistent with the Fifteenth, Nineteenth, and Twenty-

Fourth Amendments,” and this was a manifest injustice because it

“allow[ed] [the State] to continue to discriminate against Plaintiffs on

account of age in voting.” However, the prior panel squarely addressed these

arguments in TDP II and thus it appears Plaintiffs are simply attempting to

relitigate their previous appeal.8 See 978 F.3d at 189–92. The exceptions to

the law of the case doctrine may not be used as a means to revisit issues

properly addressed. Indeed, the manifest injustice exception is to be applied

narrowly such that “mere doubts or disagreement about the wisdom of a prior

decision of this or a lower court will not suffice.” Hopwood v. Texas, 236 F.3d

256, 272 (5th Cir. 2000). “To be clearly erroneous, a decision must strike us

as more than just maybe or probably wrong; it must be dead wrong.” Id. at

272–73.

The prior panel addressed “seemingly novel questions regarding the

Twenty-Sixth Amendment.” Tex. Democratic Party, 140 S. Ct. at 2015

(Sotomayor, J., writing separately, but agreeing with the denial of application

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8

In the prior appeal, the TDP II panel noted that Plaintiffs only mentioned the

COVID-19 pandemic as a basis for the law’s unconstitutionally a few times throughout

their briefs. In its analysis determining whether Plaintiffs were bringing an as-applied or a

facial challenge, it further highlighted that Plaintiffs explicitly stated that, rather than the

pandemic, it was the “unambiguous text” of the Twenty-Sixth Amendment that rendered

the law unconstitutional. TDP II, 978 F.3d at 176–77.

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to vacate stay). Plaintiffs point to no evidence that strikes us as a clearly

erroneous application of law. The district court therefore did not err in

holding that the law of the case doctrine applied and in dismissing Plaintiffs’

Twenty-Sixth Amendment challenge to Texas’ age-based election law.

IV. Conclusion

For the foregoing reasons, we AFFIRM.

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