Petition for Writ of Certiorari — Jillian Ostrewich, Petitioner v. Teneshia Hudspeth, in Her Official Capacity as Harris County Clerk, et al.

Supreme Court briefNov 16, 2023

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TABLE OF CONTENTS

Decision of the U.S. Circuit Court of Appeals for the

Fifth Circuit, filed June 28, 2023 ........................ 1a

Order of the U.S. District Court for the Southern

District of Texas, Adopting Magistrate Judge’s

Memorandum and Recommendation,

filed Sept. 30, 2021............................................. 24a

Magistrate’s Memorandum and Recommendation,

filed Sept. 14, 2021............................................. 27a

Order of the U.S. Circuit Court of Appeals for the

Fifth Circuit, denying Petition for Rehearing En

Banc, filed July 31, 2023.................................... 74a

Petitioner Jillian Ostrewich’s Objections to

Magistrate’s Recommendation, excerpts,

filed Sept. 28, 2021............................................. 76a

Appendix 1a

Case 21-20577 Document 112-1

Date Filed: 06/28/2023

United States Court of Appeals

for the Fifth Circuit

_____________

No. 21-20577

_____________

JILLIAN OSTREWICH,

Plaintiff—Appellant/Cross-Appellee,

versus

CLIFFORD TATUM, in his official capacity as Harris

County Elections Administrator; JANE NELSON, in her

official capacity as Secretary of State of Texas; JOHN

SCOTT, in his official capacity as the Attorney General

of Texas,

Defendants—Appellees/Cross-Appellants,

KIM OGG, in her official capacity as Harris County

District Attorney,

Defendant—Appellee.

____________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-715

_____________

Before CLEMENT, DUNCAN, and WILSON, Circuit

Judges.

CORY T. WILSON, Circuit Judge:

America’s “early elections were not a very pleasant

spectacle” for voters. Burson v. Freeman, 504 U.S.

Appendix 2a

191, 202 (1992) (plurality opinion) (quotation

omitted). Indeed, in the nineteenth century, polling

places were often a place of bedlam: “Sham battles

were frequently engaged in to keep away elderly and

timid voters,” id. at 202, “[c]rowds would gather to

heckle and harass voters who appeared to be

supporting the other side,” and “[e]lectioneering of all

kinds was permitted,” Minn. Voters All. v. Mansky,

138 S. Ct. 1876, 1882–83 (2018). To facilitate more

orderly voting, states came to institute a number of

reforms, including restrictions on “election-day speech

in the immediate vicinity of the polls.” Id. at 1883

(quotation omitted). “Today, all 50 states and the

District of Columbia have laws curbing various forms

of speech in and around polling places on Election

Day.” Id.

At issue in this case are three such Texas laws:

Texas Election Code sections 61.003, 61.010, and

85.036 (collectively, the “electioneering laws”). Jillian

Ostrewich filed this action, alleging that she was

unconstitutionally censored under the electioneering

laws when she voted in 2018 and that the statutes

unconstitutionally “chilled” her right to free speech by

criminalizing political expression within polling

places. The district court, adopting the magistrate

judge’s report and recommendation, upheld section

61.010 as constitutional, but concluded that sections

61.003 and 85.036 are facially unconstitutional under

the First Amendment. Both sides appealed, contesting

jurisdictional issues as well as the merits. Following

Mansky, we hold that all three electioneering laws

pass constitutional muster.

Appendix 3a

Sections 61.003 and 85.036—which are near

duplicates—prohibit “electioneering” near polling

places. Section 61.003 states, in relevant part:

(a) A person commits [a misdemeanor] offense

if, during the voting period and within 100

feet of an outside door through which a voter

may enter the building in which a polling

place is located, the person:

(1) loiters; or

(2) electioneers for or against any

candidate, measure, or political party.

...

(b) In this section:

(1) “Electioneering” includes the posting,

use, or distribution of political signs or

literature.

TEX. ELEC. CODE § 61.003. Section 85.036 is

substantively the same but applies during the early

voting period instead of on Election Day itself. TEX.

ELEC. CODE § 85.036. Section 61.010, entitled

“Wearing Name Tag or Badge in Polling Place,”

complements the first two statutes, restricting what a

person may wear in a polling place. Section 61.010

reads:

(a) . . . [A] person may not wear a badge,

insignia,

emblem,

other

similar

communicative device relating to a candidate,

measure, or political party appearing on the

ballot, or to the conduct of the election, in the

Appendix 4a

polling place or within 100 feet of any outside

door through which a voter may enter the

building in which the polling place is located.

...

violates Subsection (a). An offense under this

subsection is a Class C misdemeanor.

TEX. ELEC. CODE § 61.010.

Houston’s 2018 election ballot included a

proposition (“Prop B”) to amend the City Charter to

guarantee Houston’s firefighters pay parity with the

City’s police officers. Prop B supporters actively

campaigned for the initiative, including through

street demonstrations. Many supporters wore

distinctive yellow t-shirts that contained a union logo

and the words “Houston Fire Fighters.” Prop B

supporters also wore the shirts while advocating

around polling locations.

Jillian Ostrewich, a self-proclaimed “fire wife,” and

her firefighter husband wore these shirts when they

headed to the polls to vote during Houston’s early

voting period. When Ostrewich reached the front of

the voting line, an unidentified election worker

pointed at her shirt and told her that “[y]ou are not

going to be allowed to vote,” because voters were

“voting on that.” This was consistent with the policy

established by the polling location’s presiding judge,

the official who manages polling locations in Texas.

See TEX. ELEC. CODE § 32.075(a). 1 For Ostrewich to be

1 Under section 32.075(a), the presiding judge “shall preserve

order and prevent breaches of the peace and violations of this

Appendix 5a

permitted to vote, the election worker instructed her

to go to the restroom to turn her shirt inside-out. 2

Ostrewich complied, then returned to the line and

voted. The next day, the Harris County Administrator

of Elections advised election workers that only yellow

firefighter t-shirts explicitly promoting Prop B needed

to be covered up; union-logoed, yellow firefighter tshirts—like the one Ostrewich had worn—were

permissible.

After the election, Ostrewich filed suit, alleging

that she was unconstitutionally censored and that

Texas’s electioneering laws unconstitutionally chilled

her right to free speech. She sued both local and state

defendants in their official capacities, including the

Texas Secretary of State, Texas Attorney General,

Harris County Clerk, and Harris County Attorney,

(collectively, the “State”). 3 After discovery, both

Ostrewich and the State moved for summary

judgment. The case was assigned to a magistrate

code in the polling place and in the area within which

electioneering and loitering are prohibited . . . .” See also TEX.

ELEC. CODE § 32.071 (“The presiding judge is in charge of and

responsible for the management and conduct of the election at

the polling place of the election precinct that the judge serves.”).

2 While the election worker was who instructed Ostrewich to

change her shirt, the policy originated from the presiding judge.

Our analysis therefore refers to the presiding judge as the

relevant actor.

3 Various officeholders have changed during the pendency of

this appeal. We have previously granted unopposed motions to

substitute and refer to each officer using his or her official title

for consistency.

We recognize that the defendants encompass both state and

local government officials. However, because the defendants are

represented by a single brief, we refer to them collectively as “the

State” for simplicity.

Appendix 6a

judge, who recommended rejecting the State’s

assertions that Ostrewich’s claims were barred by

sovereign immunity and, alternatively, that she

lacked Article III standing. Addressing the merits, the

magistrate judge recommended upholding section

61.010 as constitutional because it was sufficiently

limited to apparel “relating to a candidate, measure,

or political party appearing on the ballot,” but

concluded that sections 61.003 and 85.036 were

facially unconstitutional under the First Amendment

because they contained no such limiting language.

The district court adopted the recommendation in full.

Both sides timely appealed the ruling.

On appeal, Ostrewich asserts the district court

erred in upholding section 61.010 as constitutional,

both facially and as applied. The State disagrees,

asserting that the district court should not have ruled

on Ostrewich’s constitutional claims because she lacks

standing and the Eleventh Amendment bars her

claims against Texas’s Attorney General and

Secretary of State. On the merits, the State contends

all three sections pass constitutional muster.

II.

We review a “district court’s judgment on cross

motions for summary judgment de novo, addressing

each party’s motion independently, viewing the

evidence and inferences in the light most favorable to

the nonmoving party.” CANarchy Craft Brewery

Collective, LLC v. Tex. Alcoholic Beverage Comm’n, 37

F.4th 1069, 1074 (5th Cir. 2022) (quotation omitted).

Summary judgment is appropriate if “the evidence

shows that there is no genuine issue as to any

material fact, and that the moving party is entitled to

Appendix 7a

judgment as a matter of law.” High v. E-Sys. Inc., 459

F.3d 573, 576 (5th Cir. 2006); FED R. CIV. P. 56.

When interpreting Texas statutes, this court

employs

“the

same

methods

statutory

interpretation used by the Texas Supreme Court.”

Camacho v. Ford Motor Co., 993 F.3d 308, 311 (5th

Cir. 2021). That court instructs that “text is the alpha

and the omega of the interpretive process.” Id.

(quoting BankDirect Cap. Fin., LLC v. Plasma Fab,

LLC, 519 S.W.3d 76, 86 (Tex. 2017)).

III.

Before addressing the merits, we must traverse a

couple of threshold issues: the proper parties to this

action, and Ostrewich’s standing. Both implicate the

court’s jurisdiction to consider the case. We conclude

that Texas’s Attorney General and Secretary of State

enjoy sovereign immunity, but that Ostrewich has

standing to bring her claims against the remaining

defendants.

The district court found that the Ex parte Young 4

exception to Eleventh Amendment sovereign

immunity permitted Ostrewich to bring her claims

against Texas’s Attorney General and Secretary of

State. This was incorrect; the exception only applies if

the state officials have a sufficient connection with

enforcing the electioneering laws. Per our precedent,

they do not.

Eleventh Amendment sovereign immunity

“prohibits suits against state officials or agencies that

are effectively suits against a state.” City of Austin v.

4 209 U.S. 123, 155–56 (1908).

Appendix 8a

Paxton, 943 F.3d 993, 997 (5th Cir. 2019). The Young

exception to this rule “allows private parties to bring

suits for injunctive or declaratory relief against

individual state officials,” but only if those officials

have “some connection with the enforcement of the

challenged act.” Id. (cleaned up). To show this

required “connection,” a state officer must have a

“particular duty to enforce the statute in question and

a demonstrated willingness to exercise that duty.”

Tex. Democratic Party v. Abbott, 978 F.3d 168, 181

(5th Cir. 2020) (quoting Morris v. Livingston, 739 F.3d

740, 746 (5th Cir. 2014)). It is insufficient for a party

to show only that a state officer has “a general duty to

enforce the law.” Id. In the Young context,

“enforcement” means “compulsion or constraint.”

Richardson v. Flores, 28 F.4th 649, 655 (5th Cir. 2022)

(quoting City of Austin, 943 F.3d at 1000); see also Tex.

All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th

Cir. 2022) (“If the official does not compel or constrain

anyone to obey the challenged law, enjoining that

official could not stop any ongoing constitutional

violation.”).

We first address the Secretary of State. To

overcome her sovereign immunity via Young,

Ostrewich must show that the Secretary has “some

connection with the enforcement” of the “specific

election code provisions” at issue. Richardson, 28

F.4th at 653–54 (quotation and citation omitted). She

may not rely simply on the Secretary’s “broad duties

to oversee administration of Texas’s election laws.” Id.

at 654. The Secretary’s “[o]ffering advice, guidance, or

interpretive assistance” to local officials does not

constitute enforcement. Id. at 655.

Appendix 9a

The district court concluded that the Secretary had

a sufficient connection to the enforcement of Texas’s

electioneer ring laws because she is responsible for

training presiding judges to enforce elections law, and

she issues election advisories interpreting the

electioneering laws, which guide presiding judges’

discretionary decisions “under threat of removal.” See

TEX. ELEC. CODE § 32.111 (“The [S]ecretary of [S]tate

shall adopt standards of training in election law and

procedure[s] for presiding and alternate judges.”). But

the Secretary’s training and advisory duties fall short

of the showing required for her to face suit under

Young.

In Texas, presiding judges are exclusively

entrusted with enforcing the electioneering laws at

polling locations. See TEX. ELEC. CODE § 32.075; see

also supra n.1. Both parties agree that a presiding

judge has absolute discretion in exercising that

enforcement power. See § 32.075 (“[A] presiding judge

has the power of a [state] district judge to enforce

order and preserve the peace[.]”). The Secretary, thus,

does not directly enforce the electioneering laws, but

only provides interpretive guidance. And, because

“[o]ffering advice, guidance, or interpretive assistance

does not compel or constrain” presiding judges in

fulfilling their duties, Young does not operate to strip

the Secretary of her sovereign immunity. See

Richardson, 28 F.4th at 655.

The same goes for the Attorney General. Ostrewich

must show that he has a particular duty to enforce the

electioneering laws and has demonstrated willingness

to do so. See City of Austin, 943 F.3d at 1000–02. The

district court determined that Ostrewich met this

burden because there was no evidence that “the

Appendix 10a

Attorney General will not prosecute violators in the

future.” The court further determined that the

Attorney General had two specific statutory duties

that require him to enforce the electioneering laws:

Texas Election Code sections 273.001 (triggering an

obligatory investigation by local authorities upon

receipt of two or more complaints and permitting the

Secretary to refer a complaint to the Attorney General

for

criminal

investigation),

and

273.021(a)

(permitting the Attorney General to prosecute

election law offenses).

A recent opinion from the Texas Court of Criminal

Appeals is dispositive of this question. In State v.

Stephens, the Court of Criminal Appeals held that

section 273.021(a) violated Texas’s Constitution

because the Attorney General has no independent

authority to prosecute election-related criminal

offenses. 663 S.W.3d 45, 47 (Tex. Crim. App. 2021),

reh’g denied, 664 S.W.3d 293 (Tex. Crim. App. 2022).

According to the Court of Criminal Appeals, section

273.021(a)’s plain language merely allows the

Attorney General to “prosecute with the permission of

the local prosecutor” but, critically, “[he] cannot

initiate prosecution unilaterally.” Id. at 55. Indeed,

the section does not require the Attorney General to

prosecute election law violations at all—rather, it uses

the permissive term “may” instead of a mandatory

term like “shall.” Id. at 54–55. As such, “nothing in

[the] statute ‘requires’ the Attorney General to

prosecute election cases.” Id. at 55. The Attorney

General’s power related to election laws is therefore

limited—he does not have the ability to “compel or

constrain local officials” to enforce the electioneering

laws, nor can he bring his own proceedings to

prosecute election-law violators. Cf. City of Austin,

Appendix 11a

943 F.3d at 1001 (finding application of Young

warranted when the Attorney General prohibited

payments, set rates, and sent letters threatening

formal enforcement actions).

This holds true irrespective of section 273.001. As

with section 273.021(a), the Attorney General lacks

the power to prosecute election-related criminal

offenses directly under section 273.001. Instead,

section 273.001 simply empowers the Attorney

General to investigate criminal conduct upon a

triggering event—namely, referral by the Secretary.

Nothing in this section gives the Attorney General the

ability to prosecute, as that power would come from

section 273.021(a) if it did not contravene the Texas

Constitution. Ultimately, as with the Secretary, the

Young exception does not strip the Attorney General

of his sovereign immunity. Richardson, 28 F.4th at

655. The district court erred in holding otherwise.

Accordingly, we reverse the district court’s holding

regarding

sovereign

immunity

and

dismiss

Ostrewich’s claims against the Secretary of State and

Attorney General for lack of jurisdiction.

To have standing against the remaining two

defendants, Ostrewich must (1) have suffered an

injury in fact (2) that is fairly traceable to the

challenged action of one of the remaining defendants

and (3) that will likely be redressed by a favorable

decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

61 (1992). Ostrewich alleges two injuries: First, an

election worker—while enforcing the electioneering

laws—unconstitutionally censored her speech by

instructing her to turn her firefighter t-shirt

inside-out;

second,

the

electioneering

laws

Appendix 12a

unconstitutionally chilled her speech. The State

argues neither injury is sufficient to confer standing,

maintaining that the first is not traceable to a named

defendant, and the second is not an injury-in-fact. We

disagree; Ostrewich’s allegation that Texas’s

electioneering laws unconstitutionally chilled her

speech establishes standing.

In the pre-enforcement context, this court has

repeatedly held that chilling a plaintiff’s speech is a

constitutional harm adequate to satisfy the injury-infact requirement. E.g., Speech First, Inc. v. Fenves,

979 F.3d 319, 330–31 (5th Cir. 2020) (collecting cases).

A plaintiff sufficiently pleads such an injury when she

“(1) has an ‘intention to engage in a course of conduct

arguably affected with a constitutional interest,’ (2)

[her] intended future conduct is ‘arguably proscribed

by the policy in question,’ and (3) ‘the threat of future

enforcement of the challenged policies is substantial.’”

Id. at 330 (cleaned up) (quoting Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 161–64 (2014)).

The State argues that Ostrewich fails to “show a

threat of future enforcement” because she provides no

evidence that she—or any Texas voter—has or will

ever face a credible threat of prosecution for violating

the electioneering laws. But the State’s argument is

refuted by Speech First, where we explained that for

pre-enforcement challenges to newly enacted or “nonmoribund” statutes restricting speech, this court

“assume[s] a credible threat of prosecution in the

absence of compelling contrary evidence.” Id. at 335;

see also id. at 331 (“It is not hard to sustain standing

for a pre-enforcement challenge in the highly sensitive

area of public regulations governing bedrock political

Appendix 13a

speech.”). 5 Ostrewich has standing because her “claim

is that the [non-moribund] policy causes selfcensorship among those who are subject to it, and

[her] speech is arguably regulated by the policy[.]” Id.

at 336–37.

IV.

We now turn to the merits of Ostrewich’s appeal.

The First Amendment prohibits laws “abridging the

freedom of speech.” U.S. CONST. amend. I. Texas’s

electioneering laws, forbidding certain forms of

electioneering and political apparel, plainly restrict a

form of expression within the First Amendment’s

ambit. But such laws do not always run afoul of the

First Amendment. Indeed, states are often faced “with

[this] particularly difficult reconciliation: the

accommodation of the right to engage in political

5 The State tries to circumvent this analysis by arguing that

Speech First is inapplicable because the electioneering laws are

not new. Yet the State completely ignores that Speech First also

applies to “non-moribund” statutes. 979 F.3d at 335. Moreover,

the electioneering laws at issue are routinely invoked by Texas

and enforced by election judges. See, e.g., Election Advisory

No. 2020-06, https://www.sos.state.tx.us/elections/laws/advisory

2020-06.shtml.

Similarly, the State asserts that it presented “compelling

contrary evidence” that Ostrewich does not face a threat of

prosecution, as no voter has been prosecuted for violating the law

for at least a decade. But “a lack of past enforcement does not

alone doom a claim of standing”—more evidence is needed.

Speech First, 979 F.3d at 336; see also Ctr. for Individual

Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006)

(“Controlling precedent . . . establishes that a chilling of speech

because of the mere existence of an allegedly vague or overbroad

[law] can be sufficient injury to support standing.”).

Appendix 14a

discourse with the right to vote.” Mansky, 138 S. Ct.

at 1892 (quoting Burson, 504 U.S. at 198).

The Supreme Court has articulated a

“reasonableness” test for dealing with such situations.

In Mansky, a group of voters, like Ostrewich,

challenged a Minnesota electioneering law that

prohibited voters from wearing a “political badge,

political button, or other political insignia . . . at or

about the polling place.” Id. at 1883. Recognizing that

a polling place is a “nonpublic forum,” as polling

locations have not traditionally been “a forum for

public communication[,]” the Court held that

Minnesota could reasonably restrict speech—based on

content—to further the state’s interest “in

maintaining a polling place free of distraction and

disruption.” Id. at 1885, 1891 (quotation omitted).

Under this flexible standard, states are required only

to draw a reasonable line that “articulate[s] some

sensible basis for distinguishing what [speech] may

come in from what must stay out.” Id. at 1888. States

may entrust election workers, like Texas’s presiding

judges, with discretion to enforce these restrictions at

the polls, so long as the law guides that discretion by

“objective, workable standards.” Id. at 1891.

Here, as in Mansky, the electioneering laws

regulate conduct within polling places—which, as

noted, are nonpublic forums. TEX. ELEC. CODE

§§ 61.003 (limiting the restriction to “within 100 feet”

of a polling place); 61.010(a) (similar); 85.036(a)

(similar). The district court, heavily relying on

Mansky, determined that section 61.010 is a

constitutional restriction on speech because it is

limited to specific political apparel “relating to a

candidate, measure, or political party appearing on

Appendix 15a

the ballot,” but held sections 61.003 and 85.036

facially unconstitutional because they contain no such

limiting principle.

On appeal, Ostrewich contends the district court

erred in holding section 61.010 constitutional, and she

challenges the constitutionality of all three sections.

She contends the electioneering laws were

unreasonably applied to her and that they are

incapable of reasonable application because they are

facially overbroad or vague. The State disagrees,

arguing that all three sections pass constitutional

muster, both facially and as applied. We agree with

the State. We first address section 61.010, which the

district court upheld, before turning to sections 61.003

and 85.036, which the court struck down. Last, we

address Ostrewich’s claim for nominal damages

deriving from her alleged constitutional injuries.

Ostrewich contends that section 61.010 violates

the First Amendment’s Free Speech Clause, both

facially and as applied to her wearing the firefighter

t-shirt. 6 The district court rejected these arguments

and, correctly, held the section constitutional.

6 Ostrewich also asserts that the district court erroneously

interpreted section 61.010 to apply to Texas voters, rather than

poll watchers. but her interpretation does not comport with the

statute’s unambiguous text: It prohibits, “except as provided by

Subsection (b), a person” from wearing a “badge, insignia,

emblem, or other similar communicative device.” Subsection (b)

exempts presiding judges, clerks, and peace officers, which shows

that if the Texas Legislature wanted to exempt voters or

otherwise limit section 61.010(a) only to poll workers, it knew

how to do so. Moreover, other Texas election provisions—

Appendix 16a

When a litigant brings both facial and as-applied

challenges, we generally decide the as-applied

challenge first because it is the narrower question.

Buchanan v. Alexander, 919 F.3d 847, 852 (5th Cir.

2019). So we begin with Ostrewich’s contention that

the State’s enforcement of section 61.010 violates the

First Amendment as applied to her sporting her

firefighter t-shirt at the polling location. We agree

with the district court’s conclusion that section 61.010

provided a reasonable and constitutional basis for

restricting Ostrewich from doing so.

“Casting a vote . . . is a time for choosing, not

campaigning. The State may reasonably decide that

the interior of the polling place should reflect that

distinction.” Mansky, 138 S. Ct. at 1887. Thus, to

prevent partisan discord, Texas may restrict voter

apparel in a polling place during the voting period “as

including section 61.003, which Ostrewich agrees applies to

voters—use “person” without further defining the term.

Ostrewich further argues that the district court’s

interpretation renders section 61.010 superfluous because

sections 61.003 and 85.036 already prohibit persons from

electioneering at the polling place and include apparel

restrictions. But the three laws can be read congruently. Sections

61.003 and 85.036 broadly prohibit electioneering for any

candidate, measure, or political parties, while section 61.010

more narrowly prohibits expression relating to a candidate,

measure or political party appearing on the ballot.

Finally, Ostrewich posits that section 61.010’s prohibition

does not apply to apparel. But the Supreme Court has previously

held that laws prohibiting political badges, buttons, or other

insignia apply to apparel. Mansky, 138 S. Ct. at 1883. As the

State argues, “apparel,” can certainly contain an “emblem” or

“insignia.”

Appendix 17a

long as the regulation on speech is reasonable.” Id. at

1885. The question is whether a presiding judge, by

enforcing section 61.010, could reasonably restrict

Ostrewich from wearing her firefighter t-shirt in order

to maintain a polling place free of partisan influence.

The district court concluded that Ostrewich’s

firefighter t-shirt was synonymous with the campaign

in favor of Prop B. Moreover, Ostrewich herself

testified that she wore the shirt to the polls because

she was excited to vote on the measure. From these

facts, the district court concluded that Ostrewich’s

firefighter t-shirt related to a measure appearing on

the ballot, so that the presiding judge permissibly

censored her to further Texas’s interest in ensuring a

campaign-free polling place.

Ostrewich argues the district court erred because

section 61.010 can only constitutionally proscribe

“express advocacy.” And wearing her generic

firefighter t-shirt did not constitute express advocacy

because it did not contain any explicit message

supporting Prop B. But a shirt, even one lacking

words, can constitute advocacy for a political issue.

See Tinker v. Des Moines Indep. Comm’y Sch. Dist.,

393 U.S. 503, 504 (1969) (voters donning black

armbands to express disapproval of Vietnam war). As

explained by the district court, “the State’s interest in

preventing partisan discord at the voting booth ‘may

be thwarted by displays that do not raise significant

concerns in other situations.’” Based on the

undisputed evidence, the district court correctly

concluded that Ostrewich’s firefighter t-shirt

expressed support for Prop B and the presiding judge

properly had “clear authority” under section 61.010 to

Appendix 18a

order Ostrewich to change her shirt. Ostrewich’s asapplied challenge to section 61.010 fails.

We move to her facial challenge. See Buchanan,

919 F.3d at 854 (“Generally, we proceed to an

overbreadth issue only if it is determined that the

statute would be valid as applied.” (quotation

omitted)). In the First Amendment context, litigants

can challenge a statute “because of a judicial

prediction or assumption that the statute’s very

existence may cause others not before the court to

refrain from constitutionally protected speech or

expression.” Broadrick v. Oklahoma, 413 U.S. 601,

612 (1973). Ostrewich lodges such a claim against

section 61.010, asserting that the statute does not

pass constitutional muster under Mansky and is

overbroad or vague.

Ostrewich’s theories for facial unconstitutionality

collapse into each other—essentially, Ostrewich

contends that section 61.010 flunks Mansky’s

reasonableness standard because it does not provide

“objective, workable standards” to guide presiding

judges’ discretion, rendering it overbroad or vague.

According to her, because section 61.010 prohibits

content “related to” ballot measures, the statute

impermissibly relies on presiding judges’ discernment

of whether speech is sufficiently “related to” ballot

issues. Without additional guidance, presiding judges

are left to guess at what may “come in from what must

stay out,” Mansky, 138 S. Ct. at 1888, leading to

inconsistent and haphazard enforcement. Section

61.010, in Ostrewich’s telling, thus fails to provide a

sufficient limiting construction, permitting presiding

judges to censor arbitrarily any type of apparel they

Appendix 19a

deem to be related to a candidate, measure, or political

party on the ballot.

The State disagrees, asserting that the statute’s

“related to” proviso constitutes a workable standard.

Rather than requiring presiding judges to retain a

mental index of various political issues and positions,

section 61.010’s standard is clear and simple to apply:

When a “candidate, measure, or political party” is on

the ballot, its “badge, insignia, [or] emblem” is

prohibited.

“Clear and simple” may be a bit of an

overstatement. The record offers many examples of

Texas officials inconsistently applying section 61.010.

Nonetheless, while there may be room for

interpretation, “[p]erfect clarity and precise guidance

have never been required even of regulations that

restrict expressive activity.” Mansky, 138 S. Ct. at

1891 (quoting Ward v. Rock Against Racism, 491 U.S.

781, 794 (1989)).

In Mansky, the Supreme Court was particularly

concerned that Minnesota’s law lacked any limiting

principle. By Minnesota’s own admission, its statute

could apply to ban content promoting any

“recognizable political view.” Id. at 1890. In contrast,

section 61.010 only prohibits Texans from wearing

apparel related to a candidate, measure, or political

party “appearing on the ballot,” thereby remedying

the Mansky Court’s concerns about overbroad or

vague electioneering restrictions. Indeed, this may

explain why the Court explicitly referred to section

61.010 as a law that “proscribes displays (including

apparel) in more lucid terms” than the Minnesota

statute at issue in Mansky. Id. at 1891.

Appendix 20a

As the district court succinctly explained,

[Section 61.010] targets people who have

gathered at a government-designated spot at

a government-designated time to perform a

civic task—vote. Its restrictions extend no

further . . . . By limiting its reach to issues

appearing on the ballot, the Texas law

provides fair notice of what is expected of

people gathered in and around the polling

place on election day and during early voting.

Section 61.010 draws the requisite line between

permitted and prohibited content to meet Mansky’s

“reasonableness requirement.”

Ostrewich also argues section 61.010 is

unconstitutional because the law undermines Texas’s

interest in ensuring a distraction-free polling place.

According to her, section 61.010 counterintuitively

fosters polling place distractions by requiring

presiding judges to confront voters. But this belies the

brash history of electioneering that led every state to

adopt some sort of electioneering and secret ballot

protections. See Mansky, 138 S. Ct. at 1883; Burson,

504 U.S. at 202. And even disregarding that history,

states may properly “respond to potential deficiencies

in the electoral process with foresight, rather than

react reactively,” as long as “the response is

reasonable.” Munro v. Socialist Workers Party, 479

U.S. 189, 195–96 (1986). We agree with the district

court that section 61.010 is constitutional.

Ostrewich

challenges

the

facial

constitutionality of sections 61.003 and 85.036. We

agree with the State that the district court erred in

Appendix 21a

holding the statutes unconstitutional because the

court ignored their limiting language. 7 The statutes

prohibit “electioneering,” which is generally defined to

include “political signs and literature.” TEX. ELEC.

CODE §§ 61.003, 85.036. The district court concluded

that the word “political” is unmoored from any

limiting language, thus allowing presiding judges

broadly, and impermissibly, to ban voters from

wearing “political apparel.” As the State contends,

however, the district court misconstrued the statutes.

Indeed, both sections state “a person may not

electioneer for or against any candidate, measure, or

political party.” TEX. ELEC. CODE § 85.036; see also

§ 61.003 (same). The sections then define

“electioneering” to include the “posting, use, or

distribution of political signs or literature.” When

read together, these electioneering laws prohibit

people from deploying political signs or literature “for

or against any candidate, measure, or political party”

“within 100 feet of . . . [a] building in which a polling

place is located.” Id. § 85.036. Thus, contrary to the

district court’s conclusion, sections 85.036 and 61.003

are in fact cabined by a limiting principle that meets

Mansky’s standard. See 138 S. Ct. at 1888.

7 The State also asserts that the district court did not need to

address these constitutional claims once the court concluded that

section 61.010 properly prohibited Ostrewich’s firefighter t-shirt

in the polling location. But this construes Ostrewich’s claims too

narrowly, as only related to her firefighter t-shirt. She asserts a

broader claim, that all three statutes unconstitutionally chill her

right to free expression at polling locations. She may assert such

a pre-enforcement challenge as to sections 61.003 and 85.036

because these laws arguably restrain her from wearing

expressive apparel unrelated to measures on the ballot. See

Speech First, 979 F.3d at 336 (holding plaintiffs suffer an injuryin-fact when a censoring regulation chills speech).

Appendix 22a

The district court also erred in holding that

sections 61.003 and 85.036 lack an objective, workable

standard. Unlike section 61.010, these two sections

are not limited to candidates, measures, or political

parties appearing “on the ballot.” Without the “on the

ballot” limitation, the district court reasoned, sections

61.003 and 85.036 leave presiding judges with

impermissible discretion. But in Mansky, the

Supreme Court endorsed, albeit in dicta, similar

prohibitions on “items displaying the name of a

political party, items displaying the name of a

candidate, and items demonstrating ‘support of or

opposition to a ballot question’” as “clear enough.” 138

S. Ct. at 1889. By contrast, the Minnesota law at issue

there instructed election workers to restrict any

political-issue or political-group content. The

electioneering laws at issue in today’s case are

narrower—Texas’s presiding judges are limited to

excluding

content

that

would

constitute

electioneering “for or against” candidates, measures,

and political parties.

We reach this conclusion mindful that the

standard for holding these sections facially

unconstitutional is “daunting” and requires us to find

that “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s

plainly legitimate sweep.” Voting for Am., Inc. v.

Steen, 732 F.3d 382, 387 (5th Cir. 2013) (quotation

omitted). The Supreme Court has never suggested

that electioneering restrictions could only proscribe

content related to issues appearing on the ballot, and

the district court failed to explain how these two

statutes would otherwise be unconstitutional in “a

substantial number” of their applications. We

certainly do not foresee that they would be. The

Appendix 23a

district court therefore erred in holding sections

61.003 and 85.036 unconstitutional.

Based on our conclusion that all three

electioneering laws pass constitutional muster, such

that Texas elections workers had a constitutional

basis for prohibiting Ostrewich from wearing her

firefighter t-shirt at the polling place, her claim for

nominal damages fails as a matter of law. See

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 n.*

(2021) (“Nominal damages go only to redressability

and are unavailable where a plaintiff has failed to

establish a past, completed injury.”). We therefore

affirm the district court’s denial of nominal damages.

In sum: We REVERSE the district court’s holding

denying Texas’s Secretary of State and Attorney

General sovereign immunity under the Eleventh

Amendment and DISMISS those defendants for lack

of jurisdiction. We AFFIRM that Ostrewich has

standing to bring her claims against the remaining

two defendants. We also AFFIRM the district court’s

holding that section 61.010 is constitutional.

However, we REVERSE and RENDER the district

court’s holding that sections 61.003 and 85.036 are

unconstitutional and instead uphold all three

electioneering laws. Finally, we AFFIRM the district

court’s denial of nominal damages.

Appendix 24a

Case 4:19-cv-00715 Document 121

Filed on 09/30/21 in TXSD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JILLIAN OSTREWICH,

et al.,

Plaintiffs.

VS.

TENESHIA

HUDSPETH, et al.,

Defendants.

§ CIVIL ACTION

§ NO. 4:19-CV-00715

ORDER ADOPTING MAGISTRATE JUDGE’S

MEMORANDUM AND RECOMMENDATION

On April 17, 2021, the parties’ competing motions

for summary judgment (Dkts. 74, 76) were referred to

United States Magistrate Judge Andrew M. Edison

under 28 U.S.C. § 636(b)(1)(B). Dkt. 111. Judge

Edison filed a Memorandum and Recommendation on

September 14, 2021, recommending that Plaintiff’s

Motion for Summary Judgment (Dkt. 74) be granted

in part and denied in part, and that Defendants’

Motion for Summary Judgment (Dkt. 76) be granted

in part and denied in part. See Dkt. 118.

On September 28, 2021, all parties filed their

Objections. In accordance with 28 U.S.C.

§ 636(b)(1)(C), this Court is required to “make a de

novo determination of those portions of the

Appendix 25a

[magistrate judge’s] report or specified proposed

findings or recommendations to which objection [has

been] made.” After conducting this de novo review, the

Court may “accept, reject, or modify, in whole or in

part, the findings or recommendations made by the

magistrate judge.” Id.; see also FED. R. CIV. P. 72(b)(3).

The Court has carefully considered the Objections;

the Memorandum and Recommendation; the

pleadings; and the record. The Court ACCEPTS

Judge Edison’s Memorandum and Recommendation

and ADOPTS it as the opinion of the Court. It is

therefore ORDERED that:

(1) Judge

Edison’s

Memorandum

and

Recommendation (Dkt. 118) is APPROVED

AND ADOPTED in its entirety as the holding

of the Court; and

(2) Defendants’ Motion for Summary Judgment

(Dkt. 76) is GRANTED in part and DENIED

in part; and

(3) Plaintiff’s Motion for Summary Judgment (Dkt

74) is GRANTED in part and DENIED in part.

Specifically, Ostrewich’s challenge to section

61.010 of the Texas Election Code is denied, and her

request for nominal damages is denied. Moreover,

sections 61.003 and 85.036 are struck down as

unconstitutional infringements on the First

Amendment right to free speech.

It is so ORDERED.

SIGNED at Houston, Texas, this 30th day of

September, 2021.

Appendix 26a

s/ George C. Hanks Jr.

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

Appendix 27a

Case 4:19-cv-00715 Document 118

Filed on 09/14/21 in TXSD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JILLIAN OSTREWICH,

et al.,

Plaintiffs.

VS.

TENESHIA

HUDSPETH, et al.,

Defendants.

§ CIVIL ACTION

§ NO. 4:19-CV-00715

MEMORANDUM AND RECOMMENDATION

Pending before me are competing motions for

summary judgment. Having reviewed the briefing,

the record, and the applicable law, I recommend that

Plaintiff’s Motion for Summary Judgment (Dkt. 74) be

GRANTED in part and DENIED in part, and that

Defendants’ Motion for Summary Judgment (Dkt. 76)

be GRANTED in part and DENIED in part.

BACKGROUND

Jillian Ostrewich (“Ostrewich”) filed this lawsuit

alleging that she was unconstitutionally censored

under Texas law when she went to vote wearing a

Houston firefighter T-shirt during the 2018 election. 1

At the outset of this lawsuit, there were two plaintiffs:

Ostrewich and Anthony Ortiz. On July 9, 2020, Ortiz filed a

Appendix 28a

She also alleges that Texas law unconstitutionally

“chills” her right to free speech by criminalizing

political expression within polling places. Both state

and local officials are defendants to this lawsuit,

including: Texas Secretary of State, Ruth R. Hughs;

Texas Attorney General, Ken Paxton; Harris County

Clerk, Teneshia Hudspeth; and Harris County

District Attorney, Kim Ogg.

A. THE FACTS

Until the early 2000s, Houston firefighters had

pay parity with Houston police officers, but that ended

when the police agreed to pension and benefit cuts in

exchange for raises. Under that agreement, police

salaries increased over time while firefighter salaries

remained the same. By 2018, senior Houston

firefighters earned 25 percent less than senior

Houston police officers. After years of negotiation with

Houston Mayor Sylvester Turner, the firefighters

turned down a 9.5 percent salary increase and decided

to take the issue to the voters. Having collected

enough signatures on a citizen’s initiative, Proposition

B was placed on the ballot for the 2018 election. The

proposal was to amend Houston’s City Charter to

read: “The City of Houston shall compensate

firefighters in a manner and amount that is at least

equal and comparable by rank and seniority with the

compensation provided by City Police Officers.” Mayor

Turner campaigned against the proposition as an

unsustainable drain on the City’s financial resources.

Not to be deterred, Houston firefighters organized

around Proposition B and led “block walks” wearing

Stipulation of Dismissal, and Judge George C. Hanks, Jr.,

dismissed Ortiz’s claims with prejudice the next day. See Dkt. 64.

Appendix 29a

yellow shirts provided by the AFL-CIO affiliated

International Association of Firefighters:

Dkt. 76-1 at 164.

Id. at 165.

Ostrewich’s husband, Mark, has served as a

Houston firefighter for around two decades, and

Appendix 30a

Ostrewich

self-proclaimed

“fire-wife.”

Approximately 12–18 months before the November

2018 election, Mark Ostrewich received two of the

same yellow T-shirts from his union hall and gave one

to his wife. Here is Ostrewich wearing her shirt:

Dkt. 1 at 16–17.

On October 24, 2018, Ostrewich and her husband

went to vote during the early voting period at the

Metropolitan Multi-Service Center located at 1475

West Gray Street (the “Polling Place”). See id. at 7–8.

They were wearing their yellow T-shirts. Others stood

outside the main entrance to the Polling Place,

advocating support for Proposition B while wearing

the same yellow T-shirts. The setting looked

something like this:

Appendix 31a

Dkt. 76-5 at 4. This scene was common throughout the

City of Houston during the 2018 election.

Dkt. 76-1 at 166.

Inside the Polling Place, voting booths were

stationed in various activity rooms, and a line formed

along the North Hallway. Ostrewich entered the glass

doors at the main entrance of the building and

patiently waited in line for her turn to vote. The

parties have stipulated that when Ostrewich reached

the front of the line, “an election worker told

Appendix 32a

[Ostrewich] she could not wear the yellow firefighter

T-shirt in the polling place.” Dkt. 114 at 1. She was

then directed to the women’s restroom to turn her

shirt inside out.

The parties have been unable to identify or

otherwise locate the election worker that ordered

Ostrewich to turn her shirt inside out, so Ostrewich’s

testimony is the only summary judgment evidence

regarding what transpired there in the North

Hallway. At deposition, Ostrewich testified that when

she “got to the front of the line, and it was [her] turn

to go in” to the rooms containing the voting booths, an

election worker pointed to Ostrewich’s shirt and said:

“You are not going to be allowed to vote until you [flip

your shirt inside out] because we’re ‘voting on that.’”

Dkt. 76-1 at 72. Ostrewich requested no further

explanation. Instead, she complied with the order,

changed her shirt, returned to the line, and voted 10–

15 minutes later.

On February 28, 2019, Ostrewich filed suit against

state and local authorities alleging that three sections

of the Texas Election Code violate the First

Amendment to the United States Constitution. In the

alternative, she alleges that those three provisions

run afoul of the Fourteenth Amendment’s due process

clause because they are impermissibly vague.

Ostrewich seeks a judicial declaration that those

three provisions are unconstitutional and an

injunction prohibiting Defendants from enforcing

them. She also requests nominal damages.

Appendix 33a

B. TEXAS ELECTION LAW

The three statutory provisions at issue in this case

are Texas Election Code §§ 61.003, 61.010, and

85.036. 2

Section 61.003, titled “Electioneering and

Loitering Near Polling Place,” provides, in relevant

part:

(a) A person commits an offense if, during the

voting period and within 100 feet of an outside

door through which a voter may enter the

building in which a polling place is located, the

person:

(1)

loiters; or

(2)

electioneers for or against any candidate,

measure, or political party.

***

(b) In this section:

(1)

“Electioneering” includes the posting, use,

or distribution of political signs or

literature. The term does not include the

distribution of a notice of a party

convention authorized under Section

172.1114.

(2)

“Voting period” means the period

beginning when the polls open for voting

and ending when the polls close or the last

voter has voted, whichever is later.

2 I will collectively refer to these provisions as the “Electioneering

Statutes.”

Appendix 34a

misdemeanor.

TEX. ELEC. CODE § 61.003.

Section 61.010, titled “Wearing Name Tag or

Badge in Polling Place,” provides, in relevant part:

(a)

Except as provided in Subsection (b), a person

may not wear a badge, insignia, emblem, or

other similar communicative device relating

to a candidate, measure, or political party

appearing on the ballot, or to the conduct of

the election, in the polling place or within 100

feet of any outside door through which a voter

may enter the building in which the polling

place is located.

(b)

An election judge, an election clerk, a state or

federal election inspector, a certified peace

officer, or a special peace officer appointed for

the polling place by the presiding judge shall

wear while on duty in the area described by

Subsection (a) a tag or official badge that

indicates the person’s name and title or

position.

(c)

A person commits an offense if the person

violates Subsection (a). An offense under this

subsection is a Class C misdemeanor.

Id. § 61.010.

Section 85.036, titled simply “Electioneering,”

provides, in relevant part:

(a)

During the time an early voting polling place

is open for the conduct of early voting, a

person may not electioneer for or against any

candidate, measure, or political party in or

Appendix 35a

within 100 feet of an outside door through

which a voter may enter the building or

structure in which the early voting polling

place is located.

***

(d)

A person commits an offense if the person

electioneers in violation of Subsection (a).

(e)

An offense under this section is a Class C

misdemeanor.

(f) In this section:

(1) “Early voting period” means the period

prescribed by Section 85.001.

(2) “Electioneering” includes the posting, use,

or distribution of political signs or

literature.

Id. § 85.036. Sections 61.003 and 85.036 are almost

verbatim copies of each other. The only difference is

that section 61.003 applies on election day and section

85.036 applies during the early voting period.

People who violate any of these provisions may be

charged with a Class C misdemeanor by the Attorney

General or local prosecutors. See id. §§ 273.021–

273.022. Criminal investigations into alleged

violations can be initiated in several ways. First,

receipt of two or more affidavits by registered voters

alleging violations of the Election Code triggers an

obligatory investigation by local authorities. See id.

§ 273.001(a). Second, the Secretary of State can refer

complaints to the Attorney General for criminal

investigation. See id. § 273.001(d) (citing id. § 31.006).

Finally, the Attorney General and local prosecutors

have authority to initiate criminal investigations at

Appendix 36a

their discretion. See id. § 273.001(b). Although

criminal prosecution is authorized, no one has been

charged with a criminal violation of the

Electioneering Statutes in at least a decade. See Dkt.

76 at 14 (citing interrogatory answers provided by

Paxton and Ogg).

Beyond criminal prosecution, these statutes are

also enforced at the ground level by election judges

monitoring the polling places. See TEX. ELEC. CODE

§ 32.075(a) (“The presiding judge shall preserve order

and prevent . . . violations of this code in the polling

place and in the area within which electioneering and

loitering are prohibited.”). Election judges have “the

power of a district judge to enforce order and preserve

the peace, including the power to issue an arrest

warrant.” Id. § 32.075(b). But their discretion is

guided by the Secretary of State and local election

officials, like the Harris County Clerk. See id.

§ 32.111(a) (directing the Secretary of State to develop

a standardized training curriculum for election judges

and clerks); § 32.114 (directing local election officials

to provide training sessions using the Secretary of

State’s programs and materials). An election judge

who “causes a disruption in a polling location or

willfully disobeys the provisions of” the Texas Election

Code can be removed, replaced, or reassigned. Id.

§ 32.002(g).

C. MINNESOTA VOTERS ALLIANCE V. MANSKY, 138 S.

CT. 1876 (2018)

This section explores in detail the Supreme Court’s

recent decision in Mansky, a case in which the high

court struck down a Minnesota statute similar to the

Texas statutes at issue here. Among other

prohibitions, the Minnesota statute forbid people from

Appendix 37a

wearing a “political badge, political button, or other

political insignia . . . at or about the polling place on

primary or election day.” MINN. STAT. ANN. § 211B.11.

Election judges working at polling places throughout

Minnesota were responsible for determining whether

a particular item was “political” and, therefore,

banned by the statute.

During the 2010 election, election workers in

Minnesota turned away several Minnesota voters

because they were wearing buttons that said “Please

I.D. Me” and T-shirts “with the words ‘Don’t Tread on

Me’ and the Tea Party Patriots logo.” Mansky, 138 S.

Ct. at 1884. Those voters filed a lawsuit alleging that

the Minnesota statute violated the Free Speech

Clause of the First Amendment to the United States

Constitution. The Supreme Court considered the

merits of the case in two parts.

The Supreme Court first recognized that “[a]

polling place in Minnesota qualifies as a nonpublic

forum.” Id. at 1886. Because the provision at issue did

not “discriminate[] on the basis of viewpoint on its

face,” the Court then considered whether the ban on

political apparel was “reasonable in light of the

purpose served by the forum: voting.” Id. (quotation

omitted). The Court held that the statute was

unreasonable because it did not provide “objective,

workable standards” to guide the discretion of election

judges who were responsible for determining whether

a particular item should be banned as “political.” Id.

at 1891. In other words, the State failed to “articulate

some sensible basis for distinguishing what may come

in from what must stay out.” Id. at 1888. Central to

this conclusion was the statute’s “unmoored use of the

term ‘political’” and the “haphazard interpretations”

Appendix 38a

of the law supplied by Minnesota officials in its 2010

Election Day Policy. Id. Minnesota’s 2010 Election

Day Policy provided five examples of apparel that

qualified as sufficiently “political” under the law to

justify enforcement by an election judge. The first

three explained that election judges could prohibit

“items displaying the name of a political party, items

displaying the name of a candidate, and items

demonstrating support of or opposition to a ballot

question.” Id. at 1889 (quotation omitted). The Court

found these three examples “clear enough,” but the

next two were troubling. Id.

The fourth example was problematic because it

advised election judges to prohibit apparel

commenting on “any subject on which a political

candidate or party has taken a stance.” Id. This

example was unreasonable, the Court explained,

because it “require[d] an election judge to maintain a

mental index of the platforms and positions of every

candidate and party on the ballot.” Id. The second

problematic example allowed election judges to ban

“any item promoting a group with recognizable

political views.” Id. at 1890 (quotation omitted). The

Court found this example unreasonable because

“[a]ny

number

associations,

educational

institutions, businesses, and religious organizations

could have an opinion on an ‘issue[ ] confronting

voters in a given election.’” Id. (explaining that

whether particular apparel was prohibited under the

apparel ban for promoting a group with recognizable

political views “turn[ed] in significant part on the

background knowledge and media consumption of the

particular election judge applying it”).

Appendix 39a

In short, while recognizing that it was necessary to

afford election judges “some degree of discretion,” the

Court held that the Minnesota law was unreasonable

because it was not “capable of reasoned application”—

i.e., it failed to reign in the discretion of election judges

by reference to meaningful standards. Id. at 1891–92.

SUBJECT-MATTER JURISDICTION

Defendants first challenge the jurisdiction of this

Court. Before addressing that argument, I merely

note that the Supreme Court in Mansky proceeded to

the case’s merits without addressing subject-matter

jurisdiction. Given the similarity between this case

and Manksy, it is unlikely that subject-matter

jurisdiction is lacking here. See Int’l Soc. for Krishna

Consciousness of Atlanta v. Eaves, 601 F.2d 809, 820

n.9 (5th Cir. 1979) (citing Hynes v. Mayor of Oradell,

425 U.S. 610 (1976) as reinforcing the conclusion that

the district court had jurisdiction over the claims

because the Supreme Court issued a ruling on the

merits). Nonetheless, out of an abundance of caution,

I address subject-matter jurisdiction at length here.

“Federal courts are courts of limited jurisdiction.”

La. Real Est. Appraisers Bd. v. Fed. Trade Comm’n,

917 F.3d 389, 391 (5th Cir. 2019) (quotation omitted).

To determine the limits of that jurisdiction, “federal

courts must look to the sources of their power, Article

III of the United States Constitution and

congressional statutory grants of jurisdiction.”

Tercero v. Tex. Southmost Coll. Dist., 989 F.3d 291,

298 (5th Cir. 2021). Article III of the Constitution

empowers federal courts to hear “cases” or

“controversies” arising under the Constitution. U.S.

CONST. art. III, § 2. Defendants argue that jurisdiction

is lacking here and ask me to consider: (1) whether

Appendix 40a

Ostrewich has standing to sue; (2) whether her claim

is moot; and (3) whether her claim is ripe for

adjudication. See Choice Inc. of Tex. v. Greenstein, 691

F.3d 710, 715 (5th Cir. 2012) (“The justiciability

doctrines of standing, mootness, . . . and ripeness all

originate in Article III’s case or controversy

language.” (quotation omitted)). Paxton and Hughs

further argue that, at a minimum, they should be

dismissed from this suit under the Eleventh

Amendment’s sovereign-immunity doctrine.

A. STANDING

There is no case or controversy if the plaintiff does

not have standing to sue. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992). To establish Article

III standing, an individual bears the burden of

“satisfy[ing] the trifecta of standing: injury in fact,

causation, and redressability.” Voting for Am., Inc. v.

Andrade, 888 F. Supp. 2d 816, 827 (S.D. Tex. 2012).

An injury in fact is “an invasion of a legally protected

interest which is (a) concrete and particularized and

(b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (cleaned up).

“[C]ausation and redressability will exist when a

defendant has ‘definite responsibilities relating to the

application of’ the challenged law.” Voting for Am.,

888 F. Supp. 2d at 831 (quoting K.P. v. LeBlanc, 627

F.3d 115, 124 (5th Cir. 2010)).

1. Ostrewich has standing to sue Hughs and

Hudspeth.

In the First Amendment context, a plaintiff can

establish an injury in fact by showing that she was

subjected to an enforcement action under the

Appendix 41a

allegedly unlawful statute. See Speech First, Inc. v.

Killeen, 968 F.3d 628, 638 (7th Cir. 2020).

It is undisputed that an election worker told

Ostrewich to turn her yellow firefighter T-shirt inside

out. Defendants argue that this is not an injury in fact

because enforcement of the statute does not occur

unless a voter is prevented from voting, arrested by

the police, or prosecuted by state or local authorities.

For example, Defendants contend that “the sole

consequence for violating these statutes is that such

conduct constitutes a Class C misdemeanor.” Dkt. 94

at 10. I reject this position because it diminishes the

significance of an election judge’s legal authority to

unilaterally order an individual voter to remove or

cover up articles of expressive clothing within 100 feet

of a polling place—as was done here. Because

Ostrewich was ordered to refrain from self-expression

by an election worker acting under color of state law,

she has unquestionably suffered an injury in fact for

purposes of Article III standing.

Ostrewich’s injury is fairly traceable to Hughs and

Hudspeth because they have “definite responsibilities

relating to the application of the challenged law.”

LeBlanc, 627 F.3d at 124. For example, as Secretary

of State, Hughs is responsible for “adopt[ing]

standards of training in election law and procedure for

presiding or alternate election judges” and

“develop[ing] materials for a standardized curriculum

for that training.” TEX. ELEC. CODE § 32.111(a)(1)–(2).

Moreover, Keith Ingram, the Secretary of State’s

Election Division Director, testified that election

judges have a duty to enforce the Election Code as

interpreted by the Secretary of State’s office. See Dkt.

74-6 at 16. Beyond developing a training regime for

Appendix 42a

election judges, Hughs also “assist[s] and advise[s] all

election authorities with regard to the application,

operation, and interpretation of the [Texas Election

Code],” including the provisions at issue in this case.

TEX. ELEC. CODE § 31.004(a); see also id. § 31.003

(mandating that the Secretary of State maintain a

uniform application of the Election Code and

requiring the Secretary of State to “prepare detailed

and

comprehensive

written

directives

and

instructions” and “distribute these materials to the

appropriate state and local authorities” responsible

for their administration).

As the Chief Deputy of the Harris County Clerk’s

Office, Hudspeth “plays a role in the selection and

appointment of election judges.” Dkt. 74-8 at 27. See

also TEX. ELEC. CODE § 32.002(c-1)–(e). Accordingly,

Hudspeth has authority to “remove, replace, or

reassign an election judge who causes a disruption in

a polling location or wil[l]fully disobeys” the Election

Code’s provisions. Id. § 32.002(g). Hudspeth is also

responsible for training election judges “using the

standardized training program and materials

developed by” the Secretary of State. Id. § 32.114(a).

Ostrewich suffered an injury when an election

worker enforcing the Electioneering Statutes ordered

her to turn her shirt inside out. This injury is

traceable to Hughs and Hudspeth because they are

responsible for training the election judges, keeping

them informed, and overseeing their enforcement of

the Election Code. An order enjoining Hughs and

Hudspeth from enforcing the Electioneering Statutes

would redress Ostrewich’s injury. Ostrewich has

standing to sue Hughs and Hudspeth.

Appendix 43a

2. Ostrewich has standing to sue Paxton

and Ogg.

A person who violates the Electioneering Statutes

commits a Class C misdemeanor. See id. §§ 61.003(c),

61.010(c), and 85.036(e). Although Ostrewich was

never investigated for criminal conduct or charged

with a criminal violation, the Supreme Court has held

that the threat of enforcing a law that infringes on the

right to free speech can satisfy the injury-in-fact

requirement. See Babbitt v. United Farm Workers

Nat’l Union, 442 U.S. 289, 298 (1979). That’s because

“[c]hilling a plaintiff’s speech is a constitutional harm

adequate to satisfy the injury-in-fact requirement.”

Houston Chron. Pub. Co. v. City of League City, 488

F.3d 613, 618 (5th Cir. 2007). In this pre-enforcement

posture, the Fifth Circuit has explained:

A plaintiff has suffered an injury in fact if he

(1) has an intention to engage in a course of

conduct

arguably

affected

with

constitutional interest, (2) his intended

future conduct is arguably proscribed by the

policy in question, and (3) the threat of

future enforcement of the challenged

policies is substantial.

Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th

Cir. 2020) (cleaned up).

Intention to engage in a course of conduct

arguably affected with a constitutional interest:

At her deposition, Ostrewich testified that she would

like to wear the yellow firefighter T-shirt to the polls

again but is afraid to do so for fear of criminal

prosecution. See Dkt. 74-1 at 16. Ostrewich’s intended

future conduct to wear expressive apparel to the polls

Appendix 44a

clearly implicates a constitutional interest in freedom

of speech and association. See Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 162 (2014) (“Because

petitioners’ intended future conduct concerns political

speech, it is certainly affected with a constitutional

interest.” (quotation omitted)).

Intended future conduct is arguably

proscribed by the policy in question: Defendants

contend that even if Ostrewich did wear the shirt,

“there is no evidence to suggest that her yellow shirt

will constitute electioneering in any future elections.”

Dkt. 76 at 23. In other words, Defendants take issue

with whether Ostrewich can show that her intended

future conduct will violate the Electioneering

Statutes. This argument misses the mark because “a

plaintiff who wishes to challenge the constitutionality

of a law [does not have] to confess that he will in fact

violate the law.” Driehaus, 573 U.S. at 164. Indeed,

Ostrewich had no intention of violating Texas’

political-apparel ban in 2018 when she wore her

yellow T-shirt—which expressed only general support

for “Houston Fire Fighters” and did not mention

Proposition B—and yet her shirt did violate the law.

It is arguable that her apparel may do so again.

Ostrewich has satisfied the first two elements.

The threat of future enforcement of the

challenged policies is substantial: The third

element is tricky. Nothing in the summary judgment

record shows that people have been charged with

violating the Electioneering Statutes in the past. Cf.

Ctr. for Individual Freedom v. Carmouche, 449 F.3d

655, 660–61 (5th Cir. 2006) (finding a credible threat

of future enforcement based on a history of prior

enforcement). For example, the record does not

Appendix 45a

contain an opinion from the Office of the Attorney

General that demonstrates the State’s intention to

charge or prosecute apparel-ban violators in the

future. There is also nothing in the summary

judgment record showing that Ostrewich was

threatened with arrest or prosecution. Cf. Steffel v.

Thompson, 415 U.S. 452, 459 (1974) (finding credible

threat of prosecution where “specific provisions of

state law which have provided the basis for threats of

criminal prosecution”); Houston Chron. Pub. Co., 488

F.3d at 618 (same). Still, the Supreme Court in

Mansky proceeded to the merits even though no one

had ever been prosecuted for violating Minnesota’s

electioneering statute. See Manksy, 138 S. Ct. at 1887

(Sotomayor, J., dissenting). I believe it is proper to

address the argument in full.

The Supreme Court in Driehaus found a

substantial threat of prosecution where the plaintiff

had been found to have already violated a criminal

statute, where other violations had been prosecuted

before, and where the statute allowed “any person

with knowledge of the purported violation to file a

complaint” with the Ohio Election Commission.

Driehaus, 573 U.S. at 164 (quotation omitted). The

Court explained that “[b]ecause the universe of

potential complainants is not restricted to state

officials who are constrained by explicit guidelines or

ethical obligations, there is a real risk of complaints

from, for example, political opponents.” Id.

Although there is no summary judgment evidence

showing that people have been prosecuted for

violating the Electioneering Statutes, there is

evidence in the record showing that people have been

arrested for violating the political-apparel ban and

Appendix 46a

refusing to comply with an election judge’s order. See

Dkt. 86 at 6. Texas law also requires local authorities

to investigate any claimed violation of the Election

Code supported by the affidavits of two registered

voters. See TEX. ELEC. CODE § 273.001(a). In other

words, there is a credible threat that Ostrewich could:

(1) be arrested at a polling place for violating the

apparel ban; or (2) be criminally investigated based on

complaints by third parties who are not “constrained

by explicit guidelines or ethical obligations.”

Driehaus, 573 U.S. at 164. Additionally, as the Fifth

Circuit explained just a few days ago, a district court

“may assume a substantial threat of future

enforcement absent compelling contrary evidence.”

Barilla v. City of Houston, --- 4th ---, 2021 WL

4128835, at *4 (5th Cir. Sept. 10, 2021). Finally, I

must note that, although Paxton and Ogg have not

prosecuted any violations of the Texas Election Code,

they have never disavowed their authority to do so nor

otherwise affirmatively represented that they will not

prosecute violations going forward. See id. at *5

(finding a substantial threat of enforcement where the

City of Houston did not disclaim its intent to enforce

the Ordinances in dispute, “and instead stressed the

Ordinances’ legitimacy and necessity”); McKay v.

Federspiel, 823 F.3d 862, 869 (6th Cir. 2016) (“We

have also taken into consideration a defendant’s

refusal to disavow enforcement of the challenged

statute against a particular plaintiff.”). For these

reasons, I find a credible threat that Ostrewich may

face criminal sanctions under the political-apparel

bans. Ostrewich has standing to sue Paxton and Ogg

for her pre-enforcement “chilling” injury.

Appendix 47a

B. MOOTNESS

A federal court has no jurisdiction to resolve a moot

claim because a moot claim “presents no Article III

case or controversy.” Goldin v. Bartholow, 166 F.3d

710, 717 (5th Cir. 1999). The Supreme Court has

described mootness as “the doctrine of standing set in

a time frame: The requisite personal interest that

must exist at the commencement of the litigation

(standing) must continue throughout its existence

(mootness).” Arizonans for Off. Eng. v. Arizona, 520

U.S. 43, 68 n.22 (1997) (quotation omitted). Simply

stated, “a case is moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Powell v. McCormack, 395

U.S. 486, 496 (1969). See also Ctr. for Individual

Freedom, 449 F.3d at 661 (“Generally, any set of

circumstances that eliminates actual controversy

after the commencement of a lawsuit renders that

action moot.”).

Although mootness is a bar to federal jurisdiction,

the Supreme Court has recognized an exception for

“attacks on practices that no longer directly affect the

attacking party, but are ‘capable of repetition’ while

‘evading review.’” Alvarez v. Smith, 558 U.S. 87, 93

(2009). Ostrewich argues that the “capable of

repetition while evading review” exception applies

here. To successfully invoke the exception, Ostrewich

must show: “(1) the challenged action is in its duration

too short to be fully litigated prior to cessation or

expiration, and (2) there is a reasonable expectation

that the same complaining party will be subject to the

same action again.” Fed. Election Comm’n v. Wis.

Right to Life, Inc., 551 U.S. 449, 462 (2007) (quotation

omitted). As discussed below, Ostrewich’s claim

Appendix 48a

evades review and is capable of repetition. Therefore,

her claim, although possibly moot in the traditional

sense, is still justiciable.

1. Enforcement of Texas’s political apparel

ban evades review.

In analyzing the first element—whether the

challenged conduct evades review—the Fifth Circuit

has explained that “[c]laims need to be judged on how

quickly relief can be achieved in relation to the specific

claim.” Empower Texans, Inc. v. Geren, 977 F.3d 367,

370 (5th Cir. 2020). The challenged action here is an

election

worker’s

enforcement

allegedly

unconstitutional Texas statutes that ban political

apparel at polling places.

Ostrewich alleges that an authorized election

worker enforced the statutes against her and

presented Ostrewich with a choice: either turn her

yellow T-shirt inside out or forfeit her right to vote.

According to Defendants, Ostrewich’s claim became

moot as soon as she complied with the order, changed

her shirt, and cast her vote. Under this view, the

challenged conduct is too short in duration to be fully

litigated prior to the cessation of the challenged

conduct. Nonetheless, Defendants argue that the

challenged conduct is not too short in duration to

obtain review because Ostrewich could have obtained

relief by (1) requesting an official ruling from the

presiding election judge and (2) appealing that

decision to a Texas appellate court. See Dkt. 94 at 17

(citing TEX. ELEC. CODE § 32.075(c)). But Ostrewich’s

claim is that the election worker had no constitutional

authority to enforce the statute to begin with.

Ostrewich isn’t challenging the election worker’s

order; she’s challenging the statute that authorizes

Appendix 49a

election workers to enforce a political-apparel ban

that she alleges runs afoul of the First and Fourteenth

Amendments. Ostrewich is asking for a district court

order declaring the Electioneering Statutes

unconstitutional. Nothing in the briefing suggests

that the presiding election judge had any authority or

discretion to offer that kind of relief. Cf. TEX. ELEC.

CODE § 32.002(g) (“[T]he county clerk may remove,

replace, or reassign an election judge who . . . willfully

disobeys the provisions of this code.”); Dkt. 74-6 at 16

(Texas Secretary of State Election Division Director

explaining that election judges “take an oath to

uphold the Election Code,” and must comply when the

Secretary of State “tell[s] them that the Election Code

requires something.”). Even if an election judge could

have officially ruled on the constitutionality of the

Electioneering Statutes, Ostrewich could not have

exercised her right to appeal that decision before

casting her ballot. Ostrewich’s claim evades review. 3

The first element is satisfied.

3 Defendants argue that Empower Texans supports their

position, but I disagree. The challenged conduct at issue in

Empower Texans was that the Chairman of the Committee on

House Administration of the Texas House of Representatives,

Charlie Geren, had delayed in ruling on Empower Texans’

media-pass applications, which effectively denied its reporters

access to the House Floor. See Empower Texans, 977 F.3d at 369.

The district court dismissed the complaint four days before the

end of the regular legislative session. See id. at 372. The Fifth

Circuit declined to rule on the merits and dismissed the case as

moot because the regular legislative session had ended while the

appeal was pending and “the possibility of a special session ha[d]

all but vanished.” Id. at 370. The Fifth Circuit noted that

Empower Texans could have obtained review of the challenged

conduct if it had used those four days to file an expedited notice

of appeal. See id. (citing FED. R. APP. P. 2; 5th CIR. R. 27.5). But

Appendix 50a

2. Ostrewich’s alleged injury is capable

of repetition.

To invoke the “capable of repetition while evading

review” exception, Ostrewich must also show that

“there is a reasonable expectation” that she “will be

subject to the same action again.” Wis. Right to Life,

551 U.S. at 462 (quotation omitted). The Fifth Circuit

has explained that it is “unwilling to dismiss a case as

moot when the issues properly presented, and their

effects will persist as the restrictions are applied in

future elections.” Moore v. Hosemann, 591 F.3d 741,

745 (5th Cir. 2009) (cleaned up). So, even if

Defendants are correct that Ostrewich “has no specific

plans to wear her yellow shirt to vote ever again” or

that she has no plans to engage in electioneering in

the future, Dkt. 76 at 22, Ostrewich’s claim is still not

moot. See Moore, 591 F.3d at 744 (holding “the case

was not moot because other individuals certainly

would be affected by the continuing existence of the

statute” (cleaned up)).

Ostrewich alleges that Texas’ political-apparel ban

is unconstitutional. She alleges that she suffered a

constitutional injury when an election worker

enforced the statute against her. Defendants do not

dispute that election workers will continue to enforce

the Electioneering Statutes in the future. Thus, there

is a reasonable expectation that the alleged

constitutional violation will happen again. Because

Ostrewich has successfully invoked the “capable or

repetition, yet evading review” exception to the

Empower Texans failed to do so. It waited nearly 30 days before

filing a notice of appeal, the legislative session ended, and

Empower Texans’ claim became moot. That’s not the case here.

Appendix 51a

mootness doctrine, her claim is justiciable under

Article III.

C. RIPENESS

“[T]o be a case or controversy for Article III

jurisdictional purposes, the litigation must be ripe for

decision, meaning that it must not be premature or

speculative.” Lower Colo. River Auth. v. Papalote

Creek II, L.L.C., 858 F.3d 916, 922 (5th Cir. 2017)

(quotation omitted). The Fifth Circuit has explained:

A court should dismiss a case for lack of

‘ripeness’ when the case is abstract or

hypothetical. The key considerations are the

fitness of the issues for judicial decision and

the hardship to the parties of withholding

court consideration. A case is generally ripe

if any remaining questions are purely legal

ones; conversely, a case is not ripe if further

factual development is required. However,

even where an issue presents purely legal

questions, the plaintiff must show some

hardship in order to establish ripeness.

Choice Inc. of Tex., 691 F.3d at 715 (cleaned up).

Defendants argue that Ostrewich’s claims are not

ripe for adjudication because she “has no specific

plans to wear a yellow shirt to vote again,” 4 and “there

is no evidence to suggest that her yellow shirt will

constitute electioneering in any future election.” Dkt.

76 at 23. But that is of no moment. The issues

presented in this case are purely legal questions:

4 Ostrewich testified at her deposition that she would like to wear

the T-shirt to the polling place in future elections but has no

specific plans to do so because she does not “know if it’s legal to

wear that T-shirt into a voting location.” Dkt. 76-1 at 82.

Appendix 52a

(1) whether

the

political-apparel

ban

was

constitutionally applied to Ostrewich’s yellow T-shirt;

and (2) whether the political-apparel ban is

unconstitutional on its face. No further factual

development is required to pass judgment. As

discussed above, Ostrewich suffered an injury both

when an election worker enforced the politicalapparel ban against her and from the overall chilling

of her right to free speech and association. As

Ostrewich points out, “Texas voters will continue to

wear expressive apparel to polling places,” and

“[e]lection judges will continue to enforce the

electioneering statutes against them.” Dkt. 92 at 18.

There is no speculation required to see that the

statute bans political speech. The risk that the

Electioneering Statutes unconstitutionally abridge

the First Amendment rights of Texans is not

hypothetical. This case is ripe.

D. SOVEREIGN IMMUNITY

Paxton and Hughs argue that Ostrewich’s claims

against them should be dismissed under the doctrine

of sovereign immunity. The Eleventh Amendment

presupposes “that each State is a sovereign entity in

our federal system” and “that it is inherent in the

nature of sovereignty not to be amenable to the suit of

an individual without its consent.” Alden v. Maine,

527 U.S. 706, 729 (1999) (cleaned up). Eleventh

Amendment sovereign immunity also “prohibits suits

against state officials or agencies that are effectively

suits against a state.” City of Austin v. Paxton, 943

F.3d 993, 997 (5th Cir. 2019). Aside from obtaining the

sovereign’s consent to litigate, a state’s sovereign

immunity can be abrogated by the United States

Congress under Section V of the Fourteenth

Appendix 53a

Amendment. See Fitzpatrick v. Bitzer, 427 U.S. 445,

456 (1976). The State of Texas has not consented to

this suit, and Congress has not abrogated the State’s

immunity on this issue. To overcome sovereign

immunity then, Ostrewich must fit her claim into an

exception to the doctrine.

One exception dates back over 100 years. See Ex

Parte Young, 209 U.S. 123, 157 (1908). “The Young

exception is a legal fiction that allows private parties

to bring suits for injunctive or declaratory relief

against individual state officials acting in violation of

federal law.” City of Austin, 943 F.3d at 997 (quotation

omitted). To determine whether the Ex Parte Young

exception applies, courts must consider: (1) whether

the named defendants are proper; (2) “whether the

complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as

prospective”; and (3) “whether the official in question

has a sufficient connection to the enforcement of the

challenged act.” Id. at 998 (quotations omitted). The

parties devote their briefing to whether the third

element has been satisfied. 5

5 Paxton and Hughs are proper defendants because they have the

authority to enforce the Texas Election Code. See City of Austin,

943 F.3d at 998. Paxton has the authority to criminally charge

and prosecute people who violate the Election Code. Hughs has

the authority to interpret the Election Code, train election judges

on how to enforce the Election Code, and refer complaints to the

Attorney General for criminal investigation. See TEX. ELEC.

CODE §§ 273.001(b), 273.001(d), and 273.021–273.022.

It is also clear that Ostrewich’s complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as

prospective. See Dkt. 1 at 10–14 (alleging constitutional

violations and seeking declaratory relief, injunctive relief, and

nominal damages); LeBlanc, 729 F.3d at 439 (“A suit is not

Appendix 54a

The third element is a source of confusion

throughout the Fifth Circuit and even among the

Circuit’s panels. See, e.g., Tex. Democratic Party v.

Abbott, 961 F.3d 389, 400 n.21 (5th Cir. 2020) (“Our

decisions are not a model of clarity on what

‘constitutes a sufficient connection to enforcement.’”

(quoting City of Austin, 943 F.3d at 999)). The parties

offer City of Austin as a case that might shed light on

the issue, but I’m not so sure. The problem with City

of Austin is that it seems to conflate elements one and

three. Compare 943 F.3d at 998 (“Attorney General

has the authority to enforce” the challenged statute),

with id. at 1000 n.1 (noting that “this is an odd type of

enforcement authority”), id. at 1001 (explaining that

Attorney General’s ability to intervene in a lawsuit

and enforce state law has no“overlapping facts with

this case [and is not] even remotely related to the

ordinance”), and id. at 1002 (finding not even a

“scintilla of enforcement” by the Attorney General).

Indeed, the Fifth Circuit held “that Attorney General

Paxton is not subject to the Ex Parte Young exception

because our Young caselaw requires a higher showing

of ‘enforcement’ than the City has proffered here.” Id.

at 1000. If that’s right, City of Austin has more to do

with an inquiry into whether the first element has

been satisfied, not the third.

Different panels writing for the Fifth Circuit have

recognized at least three ways in which the third

element’s sufficient-connection requirement can be

established. First, Ostrewich can put forth some

‘against’ a state” for purposes of sovereign immunity “when it

seeks prospective, injunctive relief from a state actor, in her

official capacity, based on an alleged ongoing violation of the

federal constitution.”).

Appendix 55a

evidence showing that Paxton and Hughs have some

authority to compel compliance with the law or

constrain a person’s ability to violate the law. See Tex.

Democratic Party, 961 F.3d at 401. Ostrewich could

also provide some evidence showing that Paxton and

Hughs have a duty to enforce the statute in question

and a “demonstrated willingness” to enforce the

statutes. Id. (quotation omitted). Finally, Ostrewich

can demonstrate a sufficient connection by putting

forth evidence showing “some scintilla of affirmative

action by the state official.” Id. (quotation omitted).

Put another way, if an “official can act, and there’s a

significant possibility that he or she will, the official

has engaged in enough compulsion or restraint to

apply the Young exception.” Id. (cleaned up).

Both Paxton and Hughs can act to enforce the ban

on wearing political apparel to polling places during

early voting and on election day. See TEX. ELEC CODE

§§ 273.001(b), (d), and 273.021–273.022. But that’s

not enough. Ostrewich must put forward some

evidence showing at least a “scintilla of affirmative

action by” Paxton and Hughs. Tex. Democratic Party,

961 F.3d at 401 (quotation omitted). As Chief Election

Officer for the State, Hughs is responsible for training

election judges to enforce the law as interpreted by the

Election Division. See Dkt. 76-1 at 23 (explaining that

election judges are duty-bound to enforce the law as

interpreted by the Secretary of State). The summary

judgment record shows that Hughs issued an Election

Advisory on June 18, 2020, 6 in which Hughs advised

Although this Election Advisory was issued two years after

Ostrewich filed this lawsuit, it demonstrates that the Secretary

of State has the authority to instruct election judges on how to

Appendix 56a

“County Clerks/Elections Administrators and County

Chairs,” Dkt. 85-1 at 99, that they should instruct

election judges to enforce the Electioneering Statutes

against voters “wearing a face mask that qualifies as

electioneering for or against any candidate, measure,

or political party.” Id. at 105. This is a sufficient

connection to enforcement for purposes of piercing the

State’s sovereign immunity with respect to Hughs.

See Tex. Alliance for Retired Americans v. Hughs, 489

F. Supp. 3d 667, 684 (S.D. Tex. 2020). Defendants

argue that the Secretary of State has no role in

enforcing the Electioneering Statutes because the

presiding election judge has “the exclusive authority

. . . to enforce the Texas Electioneering Laws.” Dkt. 94

at 18. That may be true, but their discretionary

decision making is guided by interpretations issued by

the Secretary of State under threat of removal.

The Texas Election Code authorizes Paxton to

enforce the challenged statutes. See TEX. ELEC. CODE

§ 273.001, 273.021(a). The question is whether Paxton

has a “demonstrated willingness” to exercise his

discretion in enforcing the Election Code or whether

there is a “significant possibility” that he will exercise

that discretion. Tex. Democratic Party, 961 F.3d at

401. In response to interrogatories, Paxton answered

that his office “has not prosecuted any alleged

violations [of the Electioneering Statutes] within the

past ten years.” Dkt. 76-6 at 15. But “a history of

enforcement is [not] required to establish a sufficient

connection,” Langan v. Abbott, 518 F. Supp. 3d 948,

953 (W.D. Tex. 2021), and there is nothing in the

summary judgment record suggesting that Paxton

enforce the Electioneering Statutes and is willing to exercise that

authority.

Appendix 57a

will not prosecute violators in the future. I am

unwilling to look at an absence of past enforcement

activity and conclude that there is no threat of future

enforcement activity, especially where the threat of

future enforcement poses a serious risk of chilling

political speech. Paxton is authorized to enforce

statutes that Ostrewich alleges are unconstitutional,

and the threat of prosecution chills political speech.

Paxton’s ability to directly enforce the statutes is a

sufficient connection to invoke the Ex Parte Young

exception to the sovereign immunity doctrine. 7

SUMMARY JUDGMENT

Having determined that I have jurisdiction to hear

this case, I can now turn to the ultimate merits of the

dispute. A party should prevail on a motion for

summary judgment when “there is no genuine dispute

as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a). A

genuine dispute of material fact exists “if the evidence

is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

7 Ostrewich’s complaint seeks both an injunction and nominal

damages. However, her claim for nominal damages against

Paxton and Hughs is clearly impermissible under the Ex Parte

Young exception and should be dismissed. See Arizonans for

Official English, 520 U.S. at 69 n.24 (The Ex Parte Young

“doctrine, however, permits only prospective relief, not

retrospective monetary awards.”); Connolly v. Roche, No. 2:14cv-00024 JWS, 2014 WL 12550553, at *3 (D. Ariz. July 30, 2014)

(“The doctrine of Ex Parte Young permits claims against state

officials in federal courts for prospective relief such as a

declaratory judgment or an injunction. It does not apply to

retroactive relief such as a claim for damages.”).

Appendix 58a

“[A] facial challenge to the constitutionality of a

statute presents a pure question of law,” so summary

judgment will be appropriate one way or another

because there are no facts that need to be resolved.

Ctr. for Individual Freedom v. Carmouche, 449 F.3d

655, 662 (5th Cir. 2006). As for Ostrewich’s as-applied

challenge to the statutes, the material facts are not in

dispute, so summary judgment is appropriate.

The First Amendment’s prohibition against laws

“abridging the freedom of speech” has been

incorporated against the states under the Fourteenth

Amendment. See Planned Parenthood Ass’n of

Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 348

(5th Cir. 2012). The Electioneering Statutes plainly

restrict an individual’s speech, but the ban applies

only to the interior of a polling place and “within 100

feet of any outside door through which a voter may

enter the building in which the polling place is

located.” TEX. ELEC. CODE §§ 61.003, 61.010(a), and

85.036(a). This type of provision triggers the “forum

based approach for assessing restrictions that the

government seeks to place on the use of its property.”

Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505

U.S. 672, 678 (1992) (quotation omitted).

As discussed, the parties have stipulated that

Ostrewich was inside a polling place when an election

worker stopped her and ordered her to turn her shirt

inside out. The Supreme Court has held that a polling

place is a nonpublic forum, where the government

may regulate speech “as long as the regulation on

speech is reasonable.” Mansky, 138 S. Ct. at 1885

(quotation omitted). Ostrewich argues that the

Electioneering Statutes were unreasonably applied to

her and that they are incapable of reasonable

Appendix 59a

application in any circumstance because they are

overbroad or vague. In other words, she challenges the

Electioneering Statutes as applied and on their face. I

must analyze the Electioneering Statutes individually

to determine whether they pass constitutional

muster.

A. SECTION 61.010

1. Ostrewich’s as-applied challenge to

section 61.010 fails.

I address Ostrewich’s as-applied challenge first

“because it is the narrower consideration.” Buchanan

v. Alexander, 919 F.3d 847, 852 (2019). A

constitutional statute may be “invalid as applied

when it operates to deprive an individual of a

protected right.” Boddie v. Connecticut, 401 U.S. 371,

379 (1971). The “standard for an as-applied challenge

is no different than the standard for a facial

challenge.” Jornales de las Palmas v. City of League

City, 945 F. Supp. 2d 779, 798 (S.D. Tex. 2013). States

may regulate speech in a polling place during the

voting period “as long as the regulation on speech is

reasonable.” Mansky, 138 S. Ct. at 1885 (quotation

omitted). Thus, the question is whether section 61.010

provided a reasonable basis for an election judge to

prohibit Ostrewich from wearing her yellow T-shirt

inside the polling place during the 2018 mid-term

election.

As noted, section 61.010 prohibits voters from

“wear[ing] a badge, insignia, emblem, or other similar

communicative device relating to a candidate,

measure, or political party appearing on the ballot, or

to the conduct of the election” in a polling place or

Appendix 60a

within 100 feet of one. TEX. ELEC. CODE § 61.010(a). 8

This provision is broad enough to permit election

judges to prohibit T-shirts and other apparel, see

Mansky 138 S. Ct. at 1883 (construing prohibition on

wearing a “political badge, political button, or other

political insignia” as applying to political apparel), but

it is narrower than the Minnesota law challenged in

Mansky because it prohibits apparel only if it

“relat[es] to a candidate, measure, or political party

appearing on the ballot.” TEX. ELEC. CODE § 61.010(a)

(emphasis added). Cf. Mansky, 138 S. Ct. at 1888

(“[T]he unmoored use of the term ‘political’ in the

Minnesota

law,

combined

with

haphazard

interpretations the State has provided in official

guidance and representations to this Court” is

incapable of reasonable application.”).

Defendants argue that the election judge had a

reasonable basis for prohibiting Ostrewich’s shirt

because it was part of a massive grassroots campaign

to encourage Houston-area residents to vote in favor

of Proposition B—a measure that appeared on the

2018 ballot. As discussed earlier, advocates wore the

same yellow T-shirt to campaign for Proposition B in

neighborhoods and at polling places throughout the

City of Houston. See Dkt. 76-1 at 99–101 (Ostrewich

testifying that Proposition B supporters campaigned

in the same yellow T-shirts at the Polling Place on the

day she voted.). Ostrewich testified that she and her

husband wore the T-shirt to the Polling Place to vote

8 Although Ostrewich voted during the early voting period, which

is governed by Title 7 of the Texas Election Code (§§ 81.001–

114.008), section 61.010 also applies during the early voting

period. See TEX. ELEC. CODE § 81.002 (“The other titles of this

code apply to early voting except provisions that are inconsistent

with this title or that cannot feasibly be applied to early voting.”).

Appendix 61a

because she was excited that “[they] were finally

getting to vote on Proposition B,” and that it was the

only Houston fire department T-shirt she owned. Dkt.

76-1 at 57–58. See also id. at 84. According to

Ostrewich, she had made it to the front of the line in

the North Hallway and was about to enter the room

containing the voting booths when an election worker

pointed to Ostrewich’s shirt and told her “[y]ou are not

going to be allowed to vote until you [flip your shirt

inside out] because we’re ‘voting on that.’” Id. at 72.

Ostrewich testified that she believed the worker was

referring to the “fact that there was a firefighter

measure on the ballot, Proposition B.” Id. at 74. She

did not ask for further explanation or otherwise

challenge the election worker’s request. Instead,

Ostrewich proceeded to the restroom and turned her

shirt inside out before voting 10 to 15 minutes later.

It is undisputed that the shirt was used by

advocates throughout the City of Houston to

campaign in favor of Proposition B in the months

leading up to the 2018 election, and it is undisputed

that campaigners wore the shirts at Houston-area

polling places to campaign in favor of Proposition B.

The fact that Ostrewich was not actively campaigning

inside the polling place while wearing the yellow shirt

is irrelevant. See Mansky, 138 S. Ct. at 1887 (rejecting

this exact argument and distinguishing “the unique

context of a polling place on Election Day” from other

cases where the Court’s “decisions have noted the

‘nondisruptive’ nature of expressive apparel in more

mundane settings.” (citing Bd. of Airport Comm’rs of

L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 567 (1987)

(T-shirt in an airport); Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 508 (1969) (black

armbands at school to protest Vietnam War)). The

Appendix 62a

same can be said of the fact that the shirt does not

explicitly say “Vote for Proposition B.” As the Court

noted in Mansky, the State’s interest in preventing

partisan discord at the voting booth “may be thwarted

by displays that do not raise significant concerns in

other situations.” Id. at 1888.

Ostrewich argues that section 61.010 was not

reasonably applied to her because of an email from the

Harris County Administrator of Elections, Sonya

Aston, sent the day after Ostrewich voted. See Dkt. 74

at 9. In that email, Aston advised local authorities

that election judges should “allow people wearing nonproposition supporting/opposing t-shirts to come in

without covering up their t-shirts.” Dkt. 74-4 at 39.

According to Ostrewich, it was unreasonable to ban

her shirt one day but allow the shirt another day. I

disagree. The question in an as-applied challenge is

whether haphazard enforcement of a statute

prejudiced the plaintiff raising the claim. Section

61.010 clearly authorized the election judge to

prohibit Ostrewich from wearing her yellow T-shirt in

the polling place during early voting. The shirts

contained an insignia relating to a measure appearing

on the ballot and were clearly associated with a

political campaign encouraging Houston residents to

vote in favor of Proposition B. The email Ostrewich

brings forth was sent in response to complaints lodged

by citizens throughout the City of Houston. This

suggests that many election judges agreed that the

shirts were prohibited under the statute. It also

indicates that voters were complaining and that

people in positions of power were listening. Where

Ostrewich sees evidence of haphazard enforcement, I

see evidence that the discretion of election judges is

Appendix 63a

constantly monitored and reined in by a system of

checks and balances.

The election judge had clear authority to order

Ostrewich to change her shirt under section 61.010.

That provision is constitutional under Mansky

because it limits the election judge’s authority to

prohibit only those “badge[s], insignia[s], emblem[s],

or other similar communicative device[s]” that relate

“to a candidate, measure, or political party appearing

on the ballot.” TEX. ELEC. CODE § 61.010(a). This

provision was reasonably applied to Ostrewich.

2. Ostrewich’s facial challenge to section

61.010 fails.

Generally, “one to whom application of a statute is

constitutional will not be heard to attack the statute

on the ground that impliedly it might also be taken as

applying to other persons or other situations in which

its application might be unconstitutional.” U.S. v.

Raines, 362 U.S. 17, 21 (1960). However, where a

regulation infringes on the right to free speech, it may

be challenged “by showing that it substantially

abridges the First Amendment rights of other parties

not before the court.” Village of Schaumburg v.

Citizens for a Better Env’t, 444 U.S. 620, 634 (1980).

First Amendment rights may be threatened by overly

broad or impermissibly vague laws. See Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972).

a. Section 61.010 is not overbroad.

Although section 61.010 was constitutional as

applied to Ostrewich, she may still lodge a facial

attack under the First Amendment overbreadth

doctrine. See Bd. of Airport Comm’rs, 482 U.S. at 574.

See also Grayned, 408 U.S. at 114 (“Because

Appendix 64a

overbroad laws, like vague ones, deter privileged

activity, our cases firmly establish appellant’s

standing to raise an overbreadth challenge.”). A

statute is overbroad “if it prohibits a substantial

amount of protected speech . . . relative to the statute’s

plainly legitimate sweep.” U.S. v. Williams, 553 U.S.

285, 292 (2008).

Section 61.010 is not overbroad because it contains

language limiting its scope to political apparel

“relating to a candidate, measure, or political party

appearing on the ballot.” TEX. ELEC. CODE § 61.010(a).

To repeat, section 61.010 only prohibits Texans from

wearing expressive apparel within a polling place if

the sentiment being expressed relates to a candidate,

measure, or political party appearing on the ballot.

This is an important limitation. Ostrewich points to

the deposition testimony of several election judges

who stated that the statute prohibits apparel

discussing past candidates for president and apparel

expressing support for organizations such as the

National Rifle Association and Black Lives Matter.

According to Ostrewich, this testimony demonstrates

that the statute’s application sweeps far too broadly

and captures too much protected speech. I disagree.

At best, this testimony establishes that the individual

election judges either do not understand the statute

or that they have been improperly trained on its

application. This does not establish that the statute’s

plain language is too broad. See Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973) (To declare a

statute overbroad, “the overbreadth of [the] statute

must not only be real, but substantial as well.”);

Grayned, 408 U.S. at 110 (“Condemned to the use of

words, we can never expect mathematical certainty

from our language. The words of the Rockford

Appendix 65a

ordinance are marked by ‘flexibility and reasonable

breadth, rather than meticulous specificity.’”

(quotation omitted)). The language of section 61.010

does not sweep too broadly because it is limited to

expressions related to candidates, measures, or

political parties appearing on the ballot.

b. Section 61.010 is not vague.

The Fourteenth Amendment prohibits states from

“depriv[ing] any person of life, liberty, or property,

without due process of law.” U.S. CONST. art. XIV, § 1.

The Supreme Court has held that “the Due Process

Clause prohibits the Government from ‘taking away

someone’s life, liberty, or property under a criminal

law so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless

that it invites arbitrary enforcement.’” Beckles v.

United States, 137 S. Ct. 886, 892 (2017) (quoting

Johnson v. United States, 576 U.S. 591, 595 (2015)).

In contexts such as the one presented here, where

“behavior as a general rule is not mapped out in

advance on the basis of statutory language[,] . . .

perhaps the most meaningful aspect of the vagueness

doctrine is . . . the requirement that a legislature

establish minimal guidelines to govern law

enforcement.” Smith v. Goguen, 415 U.S. 566, 574

(1974). The Fifth Circuit has “held that a state’s

legislative enactment is void for vagueness under the

due process clause of the Fourteenth Amendment if it

is inherently standardless, enforceable only on the

exercise of an unlimited, and hence arbitrary,

discretion vested in the state.” Women’s Med. Ctr. of

Appendix 66a

Nw. Houston v. Bell, 248 F.3d 411, 421 (5th Cir. 2001)

(cleaned up).

Section 61.010 is directed at people “in the polling

place or within 100 feet of any outside door through

which a voter may enter the building in which the

polling place is located.” TEX. ELEC. CODE § 61.010(a).

It targets people who have gathered at a governmentdesignated spot at a government-designated time to

perform a civic task—vote. Its restrictions extend no

further. Section 61.010 is further limited to prohibit

only the wearing of “a badge, insignia, emblem, or

other similar communicative device relating to a

candidate, measure, or political party appearing on

the ballot.” Id. By limiting its reach to issues

appearing on the ballot, the Texas law provides fair

notice of what is expected of people gathered in and

around the polling place on election day and during

early voting. See Grayned, 408 U.S. at 112 (noting that

an ordinance written for a specific context “gives fair

notice to those to whom it is directed” (cleaned up)).

Local residents gathering at a polling place to vote are

likely more informed about what appears on their

ballots than even state-level authorities, like the

Secretary of State. In fact, Ostrewich herself testified

she understood that she was being asked to cover her

yellow firefighter T-shirt because “there was a

firefighter measure on the ballot, Proposition B.” Dkt.

74-1 at 13.

For the same reason, section 61.010 is also capable

of reasonable enforcement. Election judges generally

serve in the precincts where they reside. This means

that they will be more familiar with what candidates,

measures, and political parties are appearing on a

local ballot. All the election judges deposed in this case

Appendix 67a

were familiar with the yellow firefighter T-shirt and

its connection to a campaign by firefighters to obtain

pay parity with police officers.

In her briefing to this Court, Ostrewich charted

responses gathered during the depositions of several

election judges that she contends demonstrate

confusion and a lack of clarity about how to enforce

section 61.010. See Dkt. 74 at 20. Ostrewich contends

that this chart demonstrates the inability to apply

section 61.010 reasonably. The question before me,

however, is not whether this or that individual

election judge understands the law they are supposed

to enforce. The question before me is whether the

statute is capable of being reasonably applied, see

Mansky, 138 S. Ct. at 1891, and the answer to that

question is yes.

Under Mansky, a statute is capable of reasonable

application and enforcement if it provides objective

and workable standards to reign in the discretion of

the individuals responsible for enforcing the statute.

See id. The statute here does just that. It is objective

because it narrows the scope of prohibited content to

an objectively verifiable question—what candidates,

measures, and political parties are appearing on the

ballot? It then authorizes election judges to exercise

their discretion in determining whether a piece of

apparel “relates” to that candidate, measure, or

political party. The fact that some amount of

discretion is involved is not unreasonable in and of

itself. See id. (acknowledging that “some degree of

discretion in this setting is necessary”).

Section 61.010 provides the outer limits of an

election judge’s discretion. For apparel to be banned

within the designated area, it must (1) relate to a

Appendix 68a

candidate, measure, or political party, and (2) that

candidate, measure, or political party must appear on

the ballot. This is a workable standard. The Supreme

Court has warned against “expect[ing] mathematical

certainty from our language” and recognized that laws

“marked by flexibility and reasonable breadth, rather

than meticulous specificity” can still pass

constitutional muster. Grayned, 408 U.S. at 110

(quotation omitted). Election judges are trained on

how to enforce this statute by both state and local

authorities, and state and local authorities continue

to issue guidance on enforcement during election

season. The discretion of election judges does not go

unchecked. Complaints are fielded by county clerks

and the Secretary of State who issue informal

advisories to the boots on the ground. See Dkt. 74-4 at

39 (Sonya Aston email).

As I mentioned, the question is not whether a

couple of election judges answered hypothetical

questions differently during depositions. The two

questions before me are (1) whether the people to

whom the statute applies have fair notice of what the

statute prohibits and (2) whether the statute provides

objective and workable standards to guide the

discretion of election judges. The answer to both

questions is yes. Section 61.010 is not impermissibly

vague on its face. This conclusion is buttressed by

Mansky where the Supreme Court directly cited

section 61.010 as “proscribing displays (including

apparel) in more lucid terms” than the Minnesota

Appendix 69a

statute. Mansky, 138 S. Ct. at 1891 (alteration in

original). 9

B. SECTIONS 61.003 AND 85.036

Because the election judge had some constitutional

basis for prohibiting Ostrewich from wearing her shirt

under section 61.010, I need not address whether the

election judge could have also banned her shirt under

sections 61.003 and 85.036. See Bowen v. United

States, 422 U.S. 916, 920–21 (1975) (admonishing

district courts and courts of appeals to avoid reaching

constitutional questions unnecessarily); Faulk v.

Union Pac. R. Co., 449 F. App’x 357, 363 (5th Cir.

2011) (“It is a basic tenet of American jurisprudence

that courts avoid reaching constitutional questions in

advance of the necessity of deciding them.” (quotation

omitted)). However, Ostrewich’s chilling injury

remains—an election worker might ban Ostrewich’s

firefighter T-shirt in the future, or she might be

criminally investigated and charged during a future

election even if no firefighter measure is on the ballot.

See TEX. ELEC. CODE §§ 61.003, 85.036.

As noted earlier, § 85.036 provides:

(a) During the time an early voting polling place is

open for the conduct of early voting, a person

may not electioneer for or against any

candidate, measure, or political party in or

9 Because I have determined that there was a constitutional basis

for prohibiting Ostrewich from wearing her T-shirt at the polling

place during the 2018 election, Ostrewich’s claim for nominal

damages against Hudspeth and Ogg fails as matter of law. See

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021) (nominal

damages are unavailable where a plaintiff has failed to establish

a past, completed injury).

Appendix 70a

within 100 feet of an outside door through

which a voter may enter the building or

structure in which the voting polling place is

located.

***

(f) In this section:

***

(2)

“Electioneering” includes the posting, use,

or distribution of political signs or

literature.

Id. § 85.036. 10 To determine whether Ostrewich’s Tshirt might be subject to sections 61.003 and 85.036 in

the future, I must first ensure that “Electioneering”

also includes political apparel.

No Texas court has construed sections 61.003 and

85.036, and there is no official administrative

guidance on how to interpret and apply these

provisions. Cf. Mansky, 138 S. Ct. at 1889 (using

Minnesota’s Election Day Policy from 2010 as the

“authoritative guidance” on how to construe the state

statute at issue there). I am also unable to certify the

question to the Texas Supreme Court. See TEX. CONST.

art. V, § 3-c (limiting jurisdiction to questions certified

by federal appellate courts). I must, therefore, make

an Erie-guess as to how a Texas court might construe

the statutes at issue here. See Doe I v. Roman Catholic

10 Sections 61.003 and 85.036 are, essentially, carbon copies of

each other. Section 61.003 applies only on election day. Section

85.036 applies during the early voting period. The operative

wording in both statutes is identical. Any ruling I make with

respect to section 85.036 applies with equal force to section

61.003.

Appendix 71a

Diocese of Galveston-Houston, No. H-05-1047, 2006

WL 8446968, at *4 (S.D. Tex. Mar. 27, 2006).

The parties agree that sections 61.003 and 85.036

apply to apparel, like Ostrewich’s T-shirt. See Dkt. 76

at 10 (explaining that sections 61.003 and 85.036

“cover any form of electioneering, including any

electioneering communicated via apparel”); Dkt. 87 at

22–23 (“Section 61.003(a)(2) prohibits electioneering

of any kind, including the kind of electioneering at

issue in this case and ‘the posting, use, or distribution

of political signs or literature.’” (emphasis added)).

The Secretary of State’s Election Advisory No. 202019 takes the position that the prohibition against

electioneering in sections 61.003 and 85.036 “applies

to clothing and accessories worn by the voter.” Dkt.

85-1 at 105. I see no reason to reach a different

conclusion.

Sections 61.003 and 85.036 prohibit voters from

“electioneer[ing] for or against any candidate,

measure, or political party.” TEX. ELEC. CODE

§§ 61.003(a)(2), 85.036(a). The statutes then define

electioneering to include “the posting, use, or

distribution of political signs or literature.” Id.

§§ 61.003(b)(2), 85.036(f)(2). But electioneering is not

limited just to the posting, use, or distribution of

political signs or literature; it also includes apparel

that stumps “for or against any candidate, measure,

or political party.” Id. §§ 61.003(a)(2), 85.036(a).

Unlike section 61.010, these provisions are not limited

to candidates, measures, or political parties appearing

on the ballot. Moreover, sections 61.003(b)(2),

85.036(f)(2) provide that electioneering includes

political signs and literature, which suggests that

Appendix 72a

these statutes allow election judges to ban voters from

wearing “political” apparel. This is problematic.

Like the Minnesota statute at issue in Mansky,

sections 61.003 and 85.036’s use of the term “political”

is unmoored from any objective, workable standard

that an election judge could use to reasonably apply

the statute. And unlike section 61.010, sections 61.003

and 85.036 do not have language limiting their

application to those candidates, measures, or political

parties appearing on the ballot. This means that an

election judge could prohibit Ostrewich from wearing

her yellow firefighter T-shirt in future elections under

sections 61.003 and 85.036, even if there is no

firefighter issue on the ballot. Ostrewich has no way

of knowing whether the election judge at her polling

place would consider the shirt to be political. She also

does not know if the shirt would be banned as

electioneering for a measure, even though the specific

measure (Proposition B) is not on the hypothetical

ballot. Sections 61.003 and 85.036 do not give Texas

voters notice of what is expected of them in the polling

place, and they do not provide election judges with

objective, workable standards to reign in their

discretion. This is impermissible under the First

Amendment and these statutory provisions should be

struck down as unconstitutional.

CONCLUSION

For the reasons provided above, Defendants’

Motion for Summary Judgment is GRANTED in part

and DENIED in part, and Plaintiff’s Motion for

Summary Judgment GRANTED in part and

DENIED in part. Specifically, I recommend that

Ostrewich’s challenge to section 61.010 of the Texas

Election Code be denied, and that her request for

Appendix 73a

nominal damages be denied. However, I recommend

that sections 61.003 and 85.036 be struck down as

unconstitutional infringements on the First

Amendment right to free speech.

The Clerk shall provide copies of this

Memorandum and Recommendation to the respective

parties who have 14 days from receipt to file written

objections under Federal Rule of Civil Procedure 72(b)

and General Order 2002–13. Failure to file written

objections within the time period mentioned shall bar

an aggrieved party from attacking the factual findings

and legal conclusions on appeal.

SIGNED this 14th day of September 2021.

s/ Andrew M. Edison

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE

Appendix 74a

Case 21-20577 Document 130-2

Date Filed: 07/31/2023

United States Court of Appeals

for the Fifth Circuit

_____________

No. 21-20577

_____________

JILLIAN OSTREWICH,

Plaintiff—Appellant/Cross-Appellee,

versus

CLIFFORD TATUM, in his official capacity as Harris

County Elections Administrator; JANE NELSON, in her

official capacity as Secretary of State of Texas; JOHN

SCOTT, in his official capacity as the Attorney General

of Texas,

Defendants—Appellees/Cross-Appellants,

KIM OGG, in her official capacity as Harris County

District Attorney,

Defendant—Appellee.

____________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-715

_____________

ON PETITION FOR REHEARING EN BANC

Before CLEMENT, DUNCAN, and WILSON, Circuit

Judges.

Appendix 75a

PER CURIAM:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5TH CIR. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en

banc (FED. R. APP. P. 35 AND 5TH CIR. R. 35), the

petition for rehearing en banc is DENIED.

Appendix 76a

Case 4:19-cv-00715 Document 119

Filed on 09/28/21 in TXSD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JILLIAN OSTREWICH,

Plaintiff,

§ Civil Action

§ No. 4:19-CV-715

TENESHIA

HUDSPETH, in her

official capacity as Harris §

County Clerk; RUTH R.

HUGHS, in her official

capacity as Secretary of

State of Texas; KIM

OGG, in her official

capacity as Harris

County District Attorney; §

KEN PAXTON, in his

official capacity as the

Attorney General of

Texas,

Defendants.

PLAINTIFF’S OBJECTIONS TO

MAGISTRATE’S RECOMMENDATION

*****

Appendix 77a

INTRODUCTION

Pursuant to 28 U.S.C. § 636, Fed. R. Civ. Proc.

72(b)(2), and Local Rule 72, Plaintiff Jillian Ostrewich

files these objections to the September 14, 2021,

Memorandum and Recommendation of the United

States

Magistrate

Judge

this

matter

(Recommendation). The Recommendation correctly

holds that Ms. Ostrewich’s case is justiciable, and that

Texas Election Code Sections 61.003 and 85.036 are

facially unconstitutional under the First Amendment.

However, the Recommendation contained factual and

legal errors on the constitutionality of Section 61.010

and Ms. Ostrewich’s as-applied claim. This Court

should correct those errors.

LEGAL STANDARD

A. De Novo Review of Magistrate

Recommendation

Objections to a magistrate’s recommendation are

reviewed under “a de novo determination of those

portions of the . . . unspecified findings or

recommendations to which objection is made.” 28

U.S.C. § 636(b)(1)(C). De novo review entails an

independent review of the record, including reviewing

the testimony of witnesses related to contested

portions of the magistrate’s findings. Calderon v.

Waco Lighthouse for the Blind, 630 F.2d 352, 355–56

(5th Cir. 1980). See also Hernandez v. Estelle, 711 F.2d

619, 620 (5th Cir. 1983) (“[T]he statutory obligation of

the district court to arrive at its own, independent

conclusion about those portions of the magistrate’s

report to which objection is made is not satisfied by a

mere review of the magistrate’s report itself.”).

Appendix 78a

B. The Defendants Have the Burden of

Proving That Speech Restrictions Further

Legitimate Goals

Speech restrictions inside of a polling place are

invalid when they are unreasonable in light of the

purpose served by the forum. Minnesota Voters

Alliance v. Mansky, 138 S. Ct. 1876, 1886 (2018)

(MVA). The State has the burden of proof, even in a

nonpublic or limited public forum, to prove that its

speech restrictions further its asserted interests. Id.

at 1888 (“the State must be able to articulate some

sensible basis for distinguishing what may come in

from what must stay out” and it failed to do so)

(emphasis added); see Center for Inv. Reporting v.

Southeastern Pennsylvania Transp. Auth., 975 F.3d

300, 314 (3d Cir. 2020) (CIR) (To determine the

reasonableness of a policy banning political ads on

public transit, “the government actor bears the burden

of ‘tying the limitation on speech to the forum’s

purpose.’”) (quoting NAACP v. City of Philadelphia,

834 F.3d 435, 445 (3d Cir. 2016) (emphasis added));

Cambridge Christian School, Inc. v. Florida High

School Athletic Ass’n, Inc., 942 F.3d 1215, 1245–46

(11th Cir. 2019) (State had burden to produce a

“reasoned explanation” or “other support” for its

content-based restriction in a nonpublic forum that

was applied arbitrarily and haphazardly). Here, the

Government Defendants introduced no factual

evidence to contradict or even cast doubt on Ms.

Ostrewich’s evidence of haphazard, inconsistent

enforcement. Instead Defendants asked the

Magistrate to simply ignore the evidence produced by

Appendix 79a

Ms. Ostrewich, Dkt. 87 at 24, and, improperly, the

Recommendation does so. Dkt. 118 at 30.

Defendants provided no factual evidence to

support their asserted interests, Dkt. 74-9 at 7 (Hughs

Interrog. Resp. 5), and declined to “speculate” as to the

statutes’ effectiveness in furthering those interests,

id. (Hughs Interrog. Resp. 6). * Counsel’s litigationdriven justifications cannot suffice. Competent

summary judgment evidence to support factual

assertions consists of “affidavits, depositions or

interrogatory responses contained in the party’s

appendix,” but “the briefs themselves . . . are not

evidence.” Tucker v. SAS Inst., Inc., 462 F. Supp. 2d

715, 723 (N.D. Tex. 2006). See also Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986) (“[T]he plain

language of Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an

element essential to that party’s case, and on which

that party will bear the burden of proof at trial.”).

In Burson v. Freeman, the Supreme Court

explained that “burden of proof” cannot be relaxed in

“all cases in which there is a conflict between First

Amendment rights and a State’s election process—

instead, it applies only when the First Amendment

Defendants contend that their subsequent document production

cures this deficiency. Dkt. 76 at 28 n.9. But they have never

identified which, of the over 80,000 pages in documents

produced, supports their contention. This omission deprived

Plaintiff of the opportunity to question the State’s 30(b)(6)

deponent on how those documents support the interests that

Defendants assert. And the omission is fatal where, as here,

Plaintiff has demonstrated that many of those documents

undercut the State’s interests.

Appendix 80a

right threatens to interfere with the act of voting

itself.” 504 U.S. 191, 209 n.11 (1992) (emphasis

added). That is, the Court offers greater deference to

concrete evidence regarding “voter confusion from

overcrowded ballots” or cases such as Burson itself

where “the challenged activity physically interferes

with electors attempting to cast their ballots.” Id.

(emphasis added); see also id. at 194 (plaintiff was a

campaign worker who was actively soliciting votes).

But when courts consider a challenge to regulations

directed at “intangible ‘influence,’ such as the ban on

election-day editorials struck down in Mills v.

Alabama,” 384 U.S. 214 (1966), “[s]tates must come

forward with more specific findings” to support their

interests. Burson, 504 U.S. at 209 n.11. * Here, the

State and County Defendants—with easier and

earlier access to all of the inspector reports and

unredacted communications—provided no factual

evidence to demonstrate that their speech restrictions

on voters’ apparel have any effect on maintaining

calm in the polling place or the integrity of the vote. †

* See Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 833

(7th Cir. 2014) (holding that “influence an election” is the kind of

“broad and imprecise language” that “risk[s] chilling” protected

speech and is therefore “persistently” overbroad in violation of

the First Amendment); Picray v. Secretary of State, 140 Or. App.

592, 600 (1996), aff’d by an equally divided court, 325 Or. 279

(1997) (striking down political-apparel ban because the passive

display of political apparel in a polling place constitutes “the

silent expression of political opinion” and does not coerce or

constitute “undue” influence).

†

Defendants previously argued that they provided evidence

through the expert reports and testimony by election workers.

Dkt. 76 at 27–29. The Recommendation correctly disregarded the

expert testimony, however, and the election worker testimony

highlighted by Defendants does not counter the overwhelming

evidence of inconsistent, haphazard application of the statutes or

Appendix 81a

The Recommendation erred in crediting Defendants’

unproven assertions.

OBJECTIONS AS TO THE

RECOMMENDATION’S FACTUAL

FINDINGS

A. The Recommendation Contained Factual

Misstatements About the Setting at the

Polling Place At Which Ms. Ostrewich

Voted in October 2018

In considering Ms. Ostrewich’s as-applied First

Amendment claim, the Recommendation asserts that

“[o]thers stood outside the main entrance to the

Polling Place, advocating support for Proposition B

while wearing the same yellow T-shirts.” Dkt. 118 at

4. But the Recommendation supports this assertion

with photographs featuring groups of campaigners

taken on other days and at other polling places. See

Dkt. 76-5 at 4 (photograph taken on Election Day,

Nov. 6, 2018); Dkt. 76-1 at 166 (photograph taken on

Oct. 31, 2018, at the Beall Street polling location). The

Recommendation’s extrapolation of that evidence to

the setting of Ms. Ostrewich’s polling place is

unnecessary and improper. That is because the

uncontroverted evidence as to Proposition B

campaigning at the Metropolitan Multi Service

Center on October 24, 2018, when and where Ms.

Ostrewich voted, is that there were only two

individuals, standing more than 100 feet away from

the polling place, wearing yellow shirts that may or

the disruption caused by election workers confronting voters or

that some voters were deprived of their right to vote because an

election worker had the discretion to bar them because of their

apparel.

Appendix 82a

may not have been the same as Ms. Ostrewich’s, and

who were identifiable as Proposition B boosters

because they were standing with a sign in favor of

Proposition B. Dkt. 92-1 at 18 (Jillian Ostrewich

testimony); see also Dkt. 92-1 at 13 (Mark Ostrewich

had no recollection of seeing any Proposition B

campaigners at all at the polling location).

The Recommendation also relies on “block walk”

photos, Dkt. 118 at 3, citing Dkt. 76-1 at 164–65,

showing people wearing a variety of mostly yellow and

some orange t-shirts, prior to the election. Many

appear to have a design on the front of the shirt

similar or identical to Ms. Ostrewich’s shirt; others

feature only an inconspicuous union logo on the shirt’s

pocket. Dkt. 76-1 at 165. None of the “block walk”

pictures show the back of the shirt, a material

omission because it is undisputed that while some

yellow shirts reference Proposition B explicitly; others

feature only the logo of the Houston Fire Fighters

union. * Dkt. 74-4 at 39 (Aston Dep.) (some shirts

specifically mentioned Proposition B, others did not).

Ms. Ostrewich’s shirt was of the latter type—it made

no reference whatsoever to Proposition B. Dkt. 118 at

4 (photographs of Ms. Ostrewich’s shirt, front and

back). The Recommendation acknowledges that Ms.

Ostrewich “had no intention of violating Texas’

political-apparel ban in 2018 when she wore her

yellow T-shirt—which expressed only general support

for ‘Houston Fire Fighters’ and did not mention

Proposition B.” Dkt. 118 at 15.

* The Election Day photograph, Dkt. 76-5 at 4, reprinted at Dkt.

118 at 5, shows the back of one individual wearing a shirt that

makes no mention of Proposition B.

Appendix 83a

In short, Defendants, who have the burden of

proof, offered no evidence to counter the evidence that

only two Proposition B supporters campaigned

outside the boundary at the Metropolitan Multi

Service Center at the time that Ms. Ostrewich voted.

Beyond this, Defendants offered no evidence as to how

many Proposition B campaigners there were relative

to campaigners for other candidates and ballot

measures (that is, whether voters would pick them out

of the crowd); whether voters talked to them to learn

their stance on issues; or what any observers may

have assumed about the apparel of voters who were

not standing with or otherwise interacting with the

campaigners. The Recommendation errs in replacing

Plaintiff’s uncontradicted testimony with speculation

based on occurrences at other times and polling

places.

*****

2. The Recommendation Improperly

Focuses Solely on Training.

The Recommendation improperly disregarded

Plaintiff’s evidence of inconsistent and haphazard

front-line enforcement, suggesting that it was

unrepresentative and that it showed, at most, that

election officials were improperly trained. Dkt. 118 at

30. No doubt election workers are improperly trained

as to the electioneering statutes, but this is by design.

See Dkt. 85-1 at 120–21 (Secretary of State Elections

Division attorney circulated advice to entire

department that “in terms of training, I would let the

election judges know that this is their responsibility

. . . If a voter disagrees . . . it would ultimately be up

to the courts to decide what is and what is not

electioneering.”).

Appendix 84a

Consequently, Harris County’s training is devoid

of any helpful guidance to election workers, see Dkt.

74-5 at 3–33. Moreover, given the limited time for

training and the greater importance of other issues,

election workers always will be minimally trained. See

Dkt. 74-3 at 12 (Morris described the difficulty of

recruiting election workers and considered the three

hour training as a maximum because “nobody wants

to sit through four hours of training”); id. at 16

(explaining that training focuses on the “most

important” topics, such as type of voter ID required

and issues with databases and equipment, rather

than “what kind of T-shirts people wear”); Dkt. 74-5

at 13 (Harris County training slideshow devotes a

single slide to electioneering, says nothing about

apparel, and contains only one specific instruction:

“Talking politics, even during a Primary, is

electioneering.”). The training advises on-site election

officials to use their judgment; that is, their mental

indices—formed by media consumption and personal

interest in following politics. Dkt. 74-3 at 11–15

(Morris testimony that because election judges are

“not given that much training,” they are forced to use

“their own [ ] judgment” to decide which voters to

confront).

Moreover, the Secretary of State’s Office routinely

refuses to provide any guidance to election judges or

to voters as to how the electioneering statutes would

apply to specific apparel, leaving it to the discretion of

on-site enforcers even when the apparel makes no

reference to any local issue. See, e.g., Dkt. 74-9 at 24–

25 (election judge has discretion to ban t-shirt stating

“vote the Bible”); see id. (although Ingram believes

that Harris County election judge was too stringent in

banning a shirt featuring the names of Justices

Appendix 85a

O’Connor, Ginsburg, Kagan, and Sotomayor, it was

the judge’s call to make); Dkt. 74-10 at 10–18 (refusing

to answer whether a posted Black Lives Matter sign

is electioneering; election judge has discretion); id. at

20–21 (refusing to answer whether a voter must cover

up “Vote the Bible,” “vote atheist,” or “vote to save Big

Bird” shirts); id. at 23–24 (refusing to answer whether

election workers could wear “patriotic” red, white, and

blue apparel); see also id. at 31–32 (refusing to answer

questions on firefighter uniforms or shirts with

Houston Fire Fighters insignia). In all, when

prompted with questions that ask for a “yes” or “no,”

the Secretary of State’s response routinely reflects its

belief that it “is not [an] answer [the office] can give or

one that should be provided to election judges.” Dkt.

85-1 at 120–21. The lack of training cannot excuse the

election workers’ unconstitutional infringement on

voters’ First Amendment rights.

3. Officials Catering to Public Pressure

Leads to Inconsistent Enforcement

The Recommendation characterizes public

pressure to alter election officials’ enforcement as

beneficial “checks and balances.” Dkt. 118 at 29

(“Where Ostrewich sees evidence of haphazard

enforcement, I see evidence that the discretion of

election judges is constantly monitored and reined in

by a system of checks and balances.”). In so stating,

the Recommendation abdicates its duty to respond to

the evidence presented. The evidence of election

officials’ haphazard interpretation is not “checks and

balances”—it’s just confusion reflective of an army of

election workers making individual, largely

Appendix 86a

unreviewable decisions. * And even the officials’

response to public pressure is inconsistent. Many

members of the public complained about enforcement

against Make America Great Again hats when Donald

Trump was not on the ballot in 2018, but election

officials, including Keith Ingram, held firm that the

electioneering statutes ban MAGA apparel whenever

it is worn. Dkt. 74-10 at 27 (voter complaint to

Ingram); Dkt. 74-6 at 7, 9–10; Dkt. 86, Appendix 13 to

Plf.’s Opp. to Defs’ MSJ (Sealed), Exh. 60, 62; Dkt. 921 at 58 (voter not allowed to vote and threatened with

arrest if he did not cover his MAGA hat in 2018

election); Dkt. 92-1 at 76 (Secretary of State circulated

news report of police called and voter detained for two

hours because of MAGA hat in 2018).

*****

1. The Scope of Section 61.010

Section 61.010, titled “Wearing Name Tag or

Badge in Polling Place,” prohibits a person from

“wear[ing] a badge, insignia, emblem, or other similar

communicative device relating to a candidate,

measure, or political party appearing on the ballot, or

to the conduct of the election” in a polling place or

within 100 feet of “an outside door through which a

voter may enter the building in which a polling place

is located.”

* Harris County hires approximately 380 people to staff the polls

during early voting and up to 6,000 on Election Day for a

Presidential election year. Dkt. 74-4 at 18 (Aston Dep.). The

State’s Election Divisions Chief observed that there are over

9,000 precincts around the State, and each is supposed to have a

polling location. Dkt. 85-1 at 5 (Ingram Dep.).

Appendix 87a

The Recommendation incorrectly treats section

61.010 as a general electioneering statute with a more

narrow scope than sections 61.003 and 85.036. Dkt.

118 at 27; see also MVA, 138 S. Ct. at 1891. Although

the MVA Court cited section 61.010 in its opinion, it

expressly refused to “pass on the constitutionality of

laws that are not before [it].” 138 S. Ct. at 1891. And

this Court has the benefit of uncontested evidence

that the Supreme Court lacked, which demonstrates

that 61.010 was not intended to replicate section

61.003’s and section 85.036’s ban on electioneering by

voters. Instead, section 61.010 was enacted later to

supplement those statutes by targeting electioneering

by poll workers. Dkt. 74-10 at 26 (Keith Ingram email

stating “61.003 and 85.036 deal with electioneering

generally. 61.010 deals with poll workers and poll

watchers and their nametags being used to

electioneer.”). As the record demonstrates, state and

local election officials never interpreted section 61.010

as a narrower duplicate of the general electioneering

bans in 61.003 and 85.036. See, e.g., Dkt. 74-6 at 10

(Ingram Dep.) (testimony by State’s 30(b)(6) deponent

that “61.010 is a more specific prohibition relating to

what persons who are in the polling place can wear on

a badge”); Dkt. 85-1 at 105 (Secretary of State’s

Election Advisory noting that section 61.003 prohibits

electioneering, which applies to “clothing” and “face

coverings”). The Recommendation erred in construing

section 61.010 as a narrower general prohibition on

electioneering where the evidence shows that the

State has not adopted such a limited construction of

the statute. See City of El Cenizo, Texas v. Texas, 890

F.3d 164, 182 (5th Cir. 2018) (court may not offer a

limiting construction not advanced by the government

“for doing so would constitute a ‘serious invasion of

Appendix 88a

the legislative domain’” (quoting United States v.

Stevens, 559 U.S. 460, 481 (2010)). *

*****

Whether section 61.010’s prohibition encompasses

t-shirts featuring the logo of specific organizations

depends on whether they communicated their support

or opposition to candidates or ballot measures well

enough to have come to the attention of election

judges, clerks, and greeters. Yet on-site enforcers of

the statutes often are unaware of the contents of the

ballot, much less the associations that support or

oppose those candidates and measures. Dkt. 74-2 at

14–15 (Gray unfamiliar with Texas Organizing

Project, Workers Defense in Action PAC, and

Communication Workers of America PAC); id. at 24

(unfamiliar with “Me too” and the Gadsden flag); Dkt.

* Legislative intent should be determined from the entire act and

not simply from isolated portions. Jones v. Fowler, 969 S.W.2d

429, 432 (Tex. 1998). Courts must interpret statutes to avoid

surplusage, In re VC PalmsWestheimer, LLC, 615 S.W.3d 655,

661 n.10 (Tex. Ct. App. 2020), and, as interpreted, 61.010’s

prohibitions of electioneering for candidates, political parties,

and measures on the ballot would be entirely within the

prohibitions of the broader 61.003, which prohibits

electioneering for candidates, political parties, and measures on

the ballot in the past, present, and future. Under the

Recommendation’s construction, 61.010 need not exist at all.

Courts must presume that the legislature chose the statute’s

language with care, including that words were chosen or omitted

for a purpose, and courts must construe statutes so that no part

is surplusage, but so that each word has meaning. Pedernal

Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d 487, 491–92

(Tex. 2017); Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,

271 S.W.3d 238, 256 (Tex. 2008) (“The Court must not interpret

the statute in a manner that renders any part of the statute

meaningless or superfluous.”).

Appendix 89a

74-3 at 21 (Morris Dep.) (“Save the Whales” could be

prohibited if it “refer[s] to organizations that are

pushing a certain agenda.”); Dkt. 85-1 at 9 (Ingram

Dep.) (“A slogan has to be well enough known that the

election judge recognizes it as a slogan.”).

*****

DATED: September 28, 2021.

Respectfully submitted:

s/ Wencong Fa

WENCONG FA (Attorney in Charge)

*****

Counsel for Plaintiff Jillian Ostrewich

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.