Texas’ chief elections administrator claims sovereign immunity bars the two lawsuits against her taking aim at the state’s voter registration and early voting rules.
(CN) — Texas’ secretary of state asked a Fifth Circuit panel Thursday to dismiss two voting rights lawsuits from the Texas Democratic Party, one challenging voter registration rules and the other a law Democrats say was passed to disenfranchise left-leaning college students by placing restrictions on temporary polling places.
Days before the state’s voter registration deadline for the 2018 midterm elections, then-Texas Secretary of State Rolando Pablos issued a press release telling voters online registration is not allowed in Texas, and advising counties applications submitted through a cellphone app created by the advocacy group Vote.org were not complete because they contained digital signatures.
Following Pablos’ guidance, county registrars notified 2,400 would-be voters their applications had been rejected as incomplete.
After Texas Governor Greg Abbott appointed fellow Republican Ruth Hughs as secretary of state, the Texas Democratic Party sued her in San Antonio federal court in January 2020, claiming the state’s “wet-signature rule” requiring a hand signature on a physical document is unconstitutional.
U.S. District Judge Orlando Garcia, a Bill Clinton appointee, refused to dismiss the lawsuit. So Hughs appealed to the New Orleans-based Fifth Circuit, seeking dismissal based on sovereign immunity.
Under U.S. Supreme Court doctrine established by its 1909 decision in Ex Parte Young, for a litigant to defeat the sovereign immunity state officials enjoy under the 11th Amendment they have to prove an ongoing violation of federal law and establish the official has some connection to the state’s enforcement of the challenged conduct.
Hughs claims she has sovereign immunity because the Texas Democratic Party is taking issue with part of the Texas Election Code that county voter registrars enforce.
Besides, Hughs says, there is no wet-signature rule.
Texas Deputy Solicitor General Matthew Frederick pressed that point in a virtual hearing Thursday before a three-judge panel of the Fifth Circuit.
He said Pablos’ press release warning off county registrars from accepting voter-registration forms with digital signatures does not purport to announce a rule and does not say anything about wet signatures.
U.S. Circuit Judge Catharina Haynes, a George W. Bush appointee, asked Frederick why Hughs does not moot the case by simply stating she is not following the press release.
“So what you are saying is voter registrars can accept online registration,” Haynes said. “So this case is kind of irrelevant because they can accept it. That doesn’t seem consistent with what the prior secretary of state said and this one seems to be living with or she would have withdrawn it.”
Frederick conceded the statute is silent on the signature question, but he said he does not agree registrars can accept online registrations. “I think the fact is Texas does not provide for online voter registration,” he said. “But the point relevant to the question here is that the secretary’s press release didn’t bind anyone. It was merely advice.”
“If she can’t stop them, why don’t they just go back to accepting online voter registration?” Haynes countered. “It’s not allowed but no one can do anything about it, that’s what you are essentially saying.”
Frederick said the main point is voter registration is handled by county registrars and that’s all that needs to be established to dismiss the case on sovereign immunity grounds.
Representing the Texas Democratic Party, Uzoma Nkwonta, with the Washington office of Perkins Coie, said the former secretary did not limit himself to issuing a press release, he also told county registrars not to accept applications with digital signatures and asked them to tell voters their applications were incomplete.
“Because of that, [Hughs] is directly connected to enforcement of the wet-signature rule. Whether the wet-signature rule arises from her instructions alone or whether it’s mandated by Texas law,” Nkwonta said.
U.S. Circuit Judge James Graves, a Barack Obama appointee, questioned the litigants on whether it would be up to Hughs or Texas Attorney General Ken Paxton to enforce the rule against accepting digital signatures by bringing a mandamus lawsuit against a county voter registrar who broke the rule.
“That’s right…If secretary thinks a person is abusing voting rights then the only recourse she has is to ask a different state official, the attorney general, to bring a lawsuit. So we think that’s further evidence she does not have enforcement authority,” Frederick said.
But Nkownta said the secretary of state’s design of the voter registration form alone is enough to show she has enforcement authority.
After the allotted 40 minutes for arguments in the voter registration case, the panel immediately jumped to another one involving temporary polling places.
The Texas Democratic Party sued Hughs in Austin federal court in October 2019, seeking an injunction to stop her from enforcing House Bill 1888.
It mandates the hours of all early polling sites must be the same as the hours of a county’s main early voting location, which must be open each weekday for at least eight hours, or at least three hours in sparsely populated counties.
The Democrats claim the Republican-backed law, which passed along party lines, suppresses voting access for college students, who tend to support Democratic candidates, because it takes away the discretion of county officials to open early voting sites with flexible hours and days, a loss most felt by Texans living on or near college campuses who don’t have reliable transportation.
Texas appealed to the Fifth Circuit after U.S. District Judge Lee Yeakel, a George W. Bush appointee, refused to dismiss the lawsuit.
Just as in the voter registration case, Texas claims Hughs has sovereign immunity because HB 1888 plainly dictates local officials are supposed to enforce it, not the secretary of state.
Texas Solicitor General Judd Stone told the panel Hughs’ only role in implementing the measure was after it passed when her staff sent out an advisory bulletin to counties outlining her take on the bill’s provisions.
Backing the challenge, Travis County Clerk Dana DeBeauvoir, a Democrat, submitted an affidavit stating HB 1888 would substantially increase the county’s costs of offering the same number of temporary polling sites for early voting as before the bill went on the books due to its mandate sites stay open for eight hours each weekday.
“In 2018, Travis County offered 61 mobile voting sites for a combined cost of approximately $50,000. Based on an analysis conducted by my office after HB 1888 was passed, we estimated that the cost of turning those same 61 sites into full-time early voting locations would cost the county approximately 1 million dollars,” the declaration states.
Stone said those figures had not been verified and Hughs would not have that information because she has nothing to do with setting up these temporary polling places.
“Travis County clerk’s declaration makes exquisitely clear that it’s HB 1888 that is the source of consternation,” Stone said. “That’s the law they are seeking to enjoin. They are seeking to test the validity of the law. In the end the problem with the plaintiffs’ suit here is they chose to sue an official that has no connection to enforcement of the law.”
But Nkwonta argued just because there’s a third party—county election officials—involved in implementing the statute, that does not disconnect Hughs from it.
Nkownta said under Texas’ interpretation of Ex Parte Young and sovereign immunity, litigants would have to sue all the election officials of all the state’s 254 counties just to ensure an unconstitutional law is not implemented.
Judd countered that one test case would prevent that scenario. He said if a federal judge enjoined a law as unconstitutional and the Fifth Circuit sustained an injunction on the merits, no county officials would go against the ruling.
U.S. Circuit Judge Don Willett, a Donald Trump appointee, rounded out panel, which did not indicate when or how they would rule on the cases.