A trifecta of crap from the Fifth Circuit

It’s what they do.

A federal appeals court has ruled for Texas in three lawsuits challenging the state’s voting laws, including mail-in ballot provisions and the elimination of straight-ticket voting.

In a series of 2-1 rulings Wednesday evening, a panel of the 5th U.S. Circuit Court of Appeals ruled that the lawsuits by civil rights groups, political organizations and voters targeted the wrong state agency — the Texas secretary of state’s office — when they sought to overturn a string of voting laws and practices.

Because the secretary of state is not in charge of enforcing the challenged laws, the agency is protected by sovereign immunity in all three lawsuits, said the opinions written by Judge Stuart Kyle Duncan and joined by Judge Don Willett.

Judge Patrick Higginbotham dissented in all three cases, writing that he believed the majority was splitting hairs by narrowly interpreting which state officers enforce election laws.

The secretary of state is the chief election officer of Texas who is charged by law with protecting the voting rights of Texans “from abuse by the authorities administering the state’s electoral processes,” Higginbotham wrote.

“The allegation in these cases is that the Secretary is failing in that duty. This charge should satisfy our … inquiry,” he said.

Reporter Chuck Lindell first posted about this on Twitter, so if for some reason the Statesman link doesn’t work or gets paywalled, you can see the basics there. Let’s break down the three cases:

A challenge by the Texas Alliance for Retired Americans and two national Democratic organizations sought to overturn a 2017 law that ended straight-ticket voting, also known as one-punch voting because it lets voters select all candidates of a particular political party in one step.

A state district judge barred enforcement of the law, ruling in September 2020 that the change unconstitutionally burdened the right to vote.

See here and here for the background. This one confused me at first, because there had been a basically identical challenge filed earlier in the same court by a different set of plaintiffs that was later dismissed by that judge. I don’t know why the subsequent challenge, which fell under the Democracy Docket umbrella, was more successful, but there you have it. You may recall I was skeptical of this one, and of the three it’s the one I’m the least upset about. The Fifth Circuit’s ruling is here.

A lawsuit by the NAACP and Texas Alliance for Retired Americans sought to block mail-in ballot regulations that require voters to pay for postage and mandate that ballots be postmarked by 7 p.m. on Election Day and received by 5 p.m. on the next day.

The lawsuit also challenged signature-matching requirements and a law that makes it a crime to possess another voter’s mail ballot.

See here and here for the background. I thought this was an interesting suit that made a reasoned case and that in a fair world would have gotten a more thoughtful review by the Fifth Circuit, but that ain’t the world we live in. I don’t know if this subject was addressed in one of the many voting rights bills that Joe Manchin and Kyrsten Sinema personally strangled (with the help of all 50 Republicans, of course), but if there’s ever another opportunity to address voting rights at a federal level, this should be an item on the to do list. The Fifth Circuit opinion is here.

A lawsuit by groups including the League of Women Voters of Texas and the Coalition of Texans with Disabilities challenged the process of verifying mail-in ballots by ensuring that the voter’s signature on the outside envelope matches the signature on the vote-by-mail application.

A trial judge granted a detailed injunction limiting the practice in September 2020, but again the 5th Circuit Court stepped in to halt the injunction until the appeal was decided. Wednesday’s ruling vacated the injunction.

See here, here, and here for the background. Remember when signature matching was our biggest concern about mail ballots? Boy, those were the days. Anyway, even though this suit was filed in 2019, that injunction was halted by a different Fifth Circuit panel because it was too close to the election. There’s always, always an excuse. The opinion for this one is here.

The first and third cases were reversed and remanded to the district court “for further proceedings consistent with this opinion”, while the second was reversed and remanded with instructions to dismiss. I’m not quite sure what further proceedings there may be, and it may be that the bigger problems caused by SB1 may make the third case not particularly relevant at this time, I dunno. I assume that since the issue cited by the Fifth Circuit was that the SOS was not the proper defendant, the cases could be refiled with some number of county election administrators as defendants instead. I don’t know how practical that would be, and I also don’t know if this is just a prelude to the Fifth Circuit (or later SCOTUS) ruling that actually you can’t sue those people either, because the whole idea that you can pursue redress in a federal court is just an illusion anyway or whatever. We’ll see if anything does get refiled, but I would not feel particularly optimistic about any of it.

UPDATE: And when I checked Twitter on Thursday, I saw that Prof. Vladeck had addressed my questions.

Always expect the worst from the Fifth Circuit. You’ll almost never be wrong.

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One Response to A trifecta of crap from the Fifth Circuit

  1. Kibitzer Curiae says:


    RE: “the 5th U.S. Circuit Court of Appeals ruled that the lawsuits by civil rights groups, political organizations and voters targeted the wrong state agency — the Texas secretary of state’s office — when they sought to overturn a string of voting laws and practices.”

    This is not correct with respect to “agency”. The Ex Parte Young exception to sovereign immunity is invoked to sue people in their official capacity in federal court (here, the Texas Secretary of State, originally Ruth Hughs, now John Scott), not the agency or department they head. The state official named as defendant must have a role in enforcement of the challenged law and that’s the crux in these appeals. See Ex parte Young, 209 U.S. at 157 (state officer defendant must have “some connection with the enforcement of the act”). What counts as a sufficient connection, however, was a murky issue here under prior caselaw. Since the Court resolved the three appeals on this threshold issue, which is jurisdictional, they avoided ruling on the merits of the substantive challenges made.


    The doctrine fashioned by the SCOTUS long ago in Ex parte Young (EPY) permits plaintiffs to sue a state officer in his (or her) official capacity for an injunction to stop ongoing violations of federal law. Ex parte Young, 209 U.S. 123, 155–56 (1908). The remedy is prospective injunctive relief, not money damages.

    The analog in Texas is an “ultra vires” suit against a state official, including the governor, as in the litigation on his mask-mandate ban, in which the Third Court of Appeals issued another opinion yesterday: Abbott v. La Joya ISD et al, NO.
    03-21-00428-CV (Tex.App.-Austin, March 17, 2022)(mem. op.)(rejecting governor’s jurisdictional challenge and affirming district court’s temporary injunction to prevent enforcement of GA-38).


    Also, the case styles on the 5th Circuit’s opinion release page are sub-optimal and inconsistent. One still names Hughs as a party. Ruth Hughs was the Texas Secretary of State at the time when these federal suits were brought. John Scott is her successor in office and was substituted because these were official-capacity actions against the office holder.

    The format used in the cross-citations in the opinions is better.

    Texas Alliance for Retired Americans v. Scott, No. 20-40643, — F.4th —, (5th Cir. March 16, 2022)(vacating injunction previously stayed by motions panel and remanding) [Additional plaintiffs-appellees: Sylvia Bruni; DSCC; DCCC] Panel opinion: Tex. All. for Retired Ams. v. Hughs, No. 20-40643, 976 F.3d 564 (5th Cir. Sept. 30, 2020) (per curiam).

    Lewis v. Scott, No. 20-50654, — F.4th —, (5th Cir. March 16, 2022)(reversing district court’s denial of defendant’s immunity assertion with instructions to dismiss) [Organizational plaintiffs-appellees: Voto Latino; Texas State Conference of the NAACP; Texas Alliance for Retired Americans].

    Richardson v. Scott, No. 20-50774, — F. 4th —, (5th Cir. March 16, 2022) (vacating preliminary injunction) [Organizational plaintiffs-appellees: MOVE Texas Civic Fund; League of Women Voters of Texas; Austin Justice Coalition; Coalition of Texans with Disabilities].

    These cases go back to the lower court because these appeals were from interim orders, rather than from final judgments.


    Also note this in the Texas Alliance case: “[W]e recognize that sovereign immunity would not pertain to Plaintiffs’ Voting Rights Act claims. See Mi Familia Vota v. Abbott, 977 F.3d 461, 469 (5th Cir. 2020) (noting “[o]ur court has held that the Voting Rights Act . . . ‘validly abrogated state sovereign immunity’” (quoting OCA-Greater Hous. v. Texas, 867 F.3d 604, 614 (5th Cir. 2017))) The injunction, however, was based on Plaintiffs’ constitutional claims only.

    The issue of the earlier suit by Bruni is also addressed:

    “The Secretary also raises issue preclusion based on a prior suit involving some but not all the present plaintiffs. See Bruni v. Hughs, 468 F. Supp. 3d 817 (S.D. Tex. 2020). Because we resolve this appeal based on sovereign immunity, we need not reach issue preclusion. See Gruver v. La. Bd. of Supervisors, 959 F.3d 178, 182 n.3 (5th Cir. 2020), cert. denied, 141 S. Ct. 901 (2020) (“While Eleventh Amendment immunity is a jurisdictional matter, . . . preclusion is not.” (citations omitted)).

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