Case: 20-40643 Document: 00516241854 Page: 1 Date Filed: 03/16/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 16, 2022
No. 20-40643 Lyle W. Cayce
Clerk
Texas Alliance for Retired Americans; Sylvia Bruni;
DSCC; DCCC,
Plaintiffs—Appellees,
versus
John Scott, in his official capacity as the Texas Secretary of State,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CV-128
Before Higginbotham, Willett, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Shortly before the November 2020 election, Plaintiffs challenged
Texas’s elimination of straight-ticket voting. Agreeing with Plaintiffs’ claims
that this change unconstitutionally burdened the right to vote, the district
court enjoined the Texas Secretary of State. A motions panel of our court
stayed the injunction. We now reverse the district court’s order, vacate the
injunction, and remand for further proceedings. Because the Secretary of
State does not enforce the law that ended straight-ticket voting, Plaintiffs’
constitutional claims are barred by sovereign immunity.
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I.
Texas House Bill 25 (HB 25) eliminated straight-ticket voting in
Texas elections. Straight-ticket or “straight-party” voting meant “cast[ing]
a vote for all the nominees of one party . . . by placing an ‘X’ in the square
beside the name of the party of [the voter’s] choice.” Tex. Elec. Code
§ 52.071(b), repealed by Act of May 20, 2017, 85th Leg., R.S., ch. 404, § 8,
2017 Tex. Gen. Laws 1081, 1083. 1 HB 25 ended that practice. It was signed
June 1, 2017, and scheduled to go into effect over three years later on
September 1, 2020. Ibid.
On August 12, 2020, Plaintiffs 2 filed suit challenging HB 25 on the
grounds that eliminating straight-ticket voting would lengthen polling lines
and therefore burden voting rights. They alleged claims under the First,
Fourteenth, and Fifteenth Amendments to the United States Constitution
and § 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. The named
defendant was the Texas Secretary of State (“the Secretary”) in her official
capacity. 3 Plaintiffs sought injunctive and declaratory relief, as well as a
preliminary injunction.
On September 25, 2020, the district court issued a preliminary
injunction based only on Plaintiffs’ constitutional undue burden claims. See
Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780
(1983). In doing so, the district court rejected the Secretary’s arguments that
the suit should be dismissed on various grounds, including issue preclusion,
1
All references to statutory sections in this opinion are to the Texas Election Code
as effective at the time of the district court’s order.
2
Plaintiffs are three organizations—the Texas Alliance for Retired Americans
(“TARA”), the national senatorial committee of the Democratic Party (“DSCC”), and
the national congressional committee of the Democratic Party (“DCCC”)—and one
individual, Sylvia Bruni, the Chair of the Webb County Democratic Party.
3
Ruth Hughs, the Secretary when suit was filed, has been replaced by John Scott.
2
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lack of standing, and sovereign immunity. The Secretary timely appealed and
moved for a stay pending appeal.
On September 30, 2020, a panel of our court stayed the preliminary
injunction. See Tex. All. for Retired Ams. v. Hughs, 976 F.3d 564 (5th Cir.
2020) (per curiam). The stay rested on “[t]he principle . . . [that] court
changes of election laws close in time to the election are strongly disfavored.”
Id. at 566–67 (citing Republican Nat’l Comm. v. Democratic Nat’l Comm., ---
U.S. ---, 140 S. Ct. 1205, 1207 (2020) (per curiam); North Carolina v. League
of Women Voters of N.C., 574 U.S. 927 (2014) (per curiam); Husted v. Ohio
State Conference of N.A.A.C.P., 573 U.S. 988 (2014) (per curiam); Veasey v.
Perry, 574 U.S. 951 (2019) (per curiam); Purcell v. Gonzalez, 549 U.S. 1 (2006)
(per curiam)). The panel declined to address standing, sovereign immunity,
or the merits. Id. at 567.
II.
“We review a preliminary injunction for abuse of discretion,
reviewing findings of fact for clear error and conclusions of law de novo.”
Planned Parenthood of Greater Tex. v. Kauffman, 981 F.3d 347, 354 (5th Cir.
2020) (en banc) (citation omitted). We review sovereign immunity and
standing de novo. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019),
cert. denied --- U.S. ---, 141 S. Ct. 1047 (2021); N.A.A.C.P. v. City of Kyle, 626
F.3d 233, 236 (5th Cir. 2010) (citations omitted).
III.
In addition to arguing the merits, the Secretary raises the threshold
issue of sovereign immunity. 4 Because we agree with the Secretary that
4
The Secretary also raises issue preclusion based on a prior suit involving some but
not all the present plaintiffs. See Bruni v. Hughs, 468 F. Supp. 3d 817 (S.D. Tex. 2020).
Because we resolve this appeal based on sovereign immunity, we need not reach issue
preclusion. See Gruver v. La. Bd. of Supervisors, 959 F.3d 178, 182 n.3 (5th Cir. 2020), cert.
denied, 141 S. Ct. 901 (2020) (“While Eleventh Amendment immunity is a jurisdictional
matter, . . . preclusion is not.” (citations omitted)). For the same reason, we need not reach
3
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Plaintiffs’ constitutional claims are barred on that basis, we need not reach
the merits.
States are immune from private suits unless they consent or unless
Congress validly strips their immunity. See Sossamon v. Texas, 563 U.S. 277,
283–84 (2011) (citing Alden v. Maine, 527 U.S. 706, 715 (1999); The
Federalist No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton)); Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996); see also U.S. Const. amend.
XI. Despite this general rule, Ex parte Young permits plaintiffs to sue a state
officer in his official capacity for an injunction to stop ongoing violations of
federal law. Ex parte Young, 209 U.S. 123, 155–56 (1908); see also Whole
Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021). The officer sued must
have “some connection with the enforcement of the [challenged] act.” Young,
209 U.S. at 157 (emphasis added).
How much of a “connection” has been hard to pin down, though. See
Tex. Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (TDP)
(observing that “[our] circuit has not spoken with conviction” on this issue). 5
the Secretary’s argument that Plaintiffs lack standing. Finally, we recognize that sovereign
immunity would not pertain to Plaintiffs’ Voting Rights Act claims. See Mi Familia Vota v.
Abbott, 977 F.3d 461, 469 (5th Cir. 2020) (noting “[o]ur court has held that the Voting
Rights Act . . . ‘validly abrogated state sovereign immunity’” (quoting OCA-Greater Hous.
v. Texas, 867 F.3d 604, 614 (5th Cir. 2017))). The injunction, however, was based on
Plaintiffs’ constitutional claims only.
5
An open question is whether our court has adopted as binding precedent the
plurality view in Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), that an official
must be “specially charged with the duty to enforce the statute” and “be threatening to
exercise that duty.” Id. at 414 (plurality op.). See City of Austin, 943 F.3d at 999–1000
(citing K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010) (discussing Okpalobi); Air Evac EMS,
Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507 (2017); Morris v. Livingston,
739 F.3d 740 (5th Cir. 2014)); see also Tex. Democratic Party v. Hughs, 997 F.3d 288, 291 &
n.12 (5th Cir. 2021) (“We have not outlined a clear test for when a state official is
sufficiently connected to the enforcement of a state law so as to be a proper defendant under
Ex parte Young.”) (citing cases); Tex. Democratic Party v. Hughs, 860 F. App’x 874, 877 (5th
Cir. 2021) (per curiam) (noting our precedents in this area “do not provide as much clarity
as we would prefer”).
4
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But some guideposts have emerged. First, an official must have more than
“the general duty to see that the laws of the state are implemented.” City of
Austin, 943 F.3d at 999–1000 (quoting Morris v. Livingston, 739 F.3d 740, 746
(5th Cir. 2014)). Second, the official must have “the particular duty to
enforce the statute in question and a demonstrated willingness to exercise
that duty.” TDP, 978 F.3d at 179 (citation omitted). This means the analysis
is “provision-by-provision”: The officer must enforce “the particular
statutory provision that is the subject of the litigation.” Ibid. (citation
omitted); see also Mi Familia Vota v. Abbott, 977 F.3d 461, 467–68 (5th Cir.
2020). “Th[at] is especially true here because the Texas Election Code
delineates between the authority of the Secretary of State and local officials.”
Ibid. Third, “enforcement” means “compulsion or constraint.” City of
Austin, 943 F.3d at 1000 (quoting K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir.
2010)). If the official does not compel or constrain anyone to obey the
challenged law, enjoining that official could not stop any ongoing
constitutional violation. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of
Workers’ Comp., 851 F.3d 507, 520 (5th Cir. 2017) (noting “significant
overlap between Article III jurisdiction, Ex parte Young, and equitable relief”
(citation omitted)).
We apply these principles to decide whether the Secretary has the
necessary connection to enforcing HB 25’s repeal of straight-ticket voting.
The Secretary argues he lacks that connection and therefore is not a proper
defendant under Ex parte Young. We agree.
As the Secretary points out, enforcement of HB 25 falls to local
election officials. HB 25 repealed election code section 52.071, which
required that a “square” for straight-ticket voting “shall be printed to the left
of each political party’s name.” Tex. Elec. Code § 52.071(a) (repealed
eff. Sept. 1, 2020) (emphasis added). Because the now-defunct statute did
not name an official, we ask whether the Secretary “actually ha[d] the
authority to enforce [it].” City of Austin, 943 F.3d at 998. Our precedent says
5
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no. “The [Texas] Secretary [of State] is not responsible for printing
. . . ballots.” Mi Familia Vota, 977 F.3d at 468 (citing Tex. Elec. Code §§
52.002, 31.043; In re Cercone, 323 S.W.3d 293, 294 (Tex. App.—Dallas 2010,
pet. denied)). That task—and thus enforcement of section 52.071 and HB
25’s repeal of it—belongs to the authority charged with preparing the ballot:
a county clerk, county party chair, city secretary, or other local official,
depending on the type of election. See Tex. Elec. Code § 52.002(1)–(4);
Mi Familia Vota, 977 F.3d at 468 (“Th[e] responsibility [for printing ballots]
falls on local officials.”). Consequently, “directing the Secretary not to
enforce [HB 25] would not afford the Plaintiffs the relief that they seek, and
therefore, the Secretary of State is not a proper defendant.” Ibid. (cleaned
up).
Plaintiffs argue other election code provisions give the Secretary
“responsibilities” for enforcing HB 25. Not so. Principally, Plaintiffs point
to the Secretary’s “voter education” duties in section 31.012. These require
the Secretary to (1) post a notice on his website that HB 25 abolished straight-
ticket voting, Tex. Elec. Code § 31.012(a); (2) send a similar notice to
election officials, id. § 31.012(b-1); and (3) “adopt rules and establish
procedures as necessary for the [State’s] implementation of [HB 25] to
ensure that voters and county election administrators are not burdened by
the implementation,” id. § 31.012(d). None of these duties makes the
Secretary the “enforcer” of HB 25. In performing them, the Secretary does
not “compel or constrain” officials to print ballots without the straight-ticket
option. TDP, 978 F.3d at 180. Suppose a court enjoined the Secretary from
sending notices about HB 25 or from making rules to facilitate the post-HB
25 system. The Ex parte Young question is whether that injunction would
constrain election officials to restore straight-ticket voting, which is what
Plaintiffs want. The answer is no. See Mi Familia Vota, 977 F.3d at 468
6
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(Secretary’s duties as to electronic voting did not make her proper defendant
as to claims seeking “use [of] paper ballots”). 6
Plaintiffs also rely on TDP v. Abbott, which held the Secretary was
sufficiently connected to a challenged statute that allowed voters 65-and-
older to vote by mail. 978 F.3d at 179–80. That decision relied on the
Secretary’s duty to design the mail-in ballot application form. Ibid.; see Tex.
Elec. Code § 31.002. But Plaintiffs miss a key distinction between that
case and this one. In TDP, local election officials were required to use the
Secretary’s form, so an injunction ordering the Secretary to revise the form
would have constrained those officials. See 978 F.3d at 179–80. Not so here.
Plaintiffs have identified no duty of the Secretary that constrains election
officials with respect to the straight-ticket option on ballots.
It is true, as Plaintiffs point out, that the Secretary plays a role in
designing write-in and provisional ballots. See Tex. Elec. Code
§ 105.002(c) (write-in ballots) (repealed eff. Sept 1, 2021); id. § 124.006
(provisional ballots). But Plaintiffs fail to show how these duties relate to
voting at polling locations. Plaintiffs also overstate the Secretary’s role in
designing electronic ballots. Yes, the Secretary has discretion to alter the form
and content of electronic ballots, but that discretion is cabined to encoding
ballots (prepared by local officials) for compatibility with an electronic voting
system. Id. § 52.075(a). Plaintiffs fail to show how that clerical discretion is a
duty at all, much less a duty tied to the inclusion of a straight-ticket voting
option on ballots. See TDP, 978 F.3d at 179.
Finally, Plaintiffs rely on the Secretary’s “expansive duties” in
enforcing election laws—such as his role as “chief election officer,” Tex.
6
For the same reasons, we reject Plaintiffs’ reliance on the Secretary’s duty to
“prescribe the form and content of the instruction poster” at polling places, which must
instruct voters on “marking and depositing the ballot.” Tex. Elec. Code § 62.011(b),
(c)(1). Enjoining the Secretary from explaining HB 25 on the instructional poster would do
nothing to restore straight-ticket voting.
7
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Elec. Code § 31.001, his duty to “obtain and maintain uniformity” in the
laws’ application, id. § 31.003, and his authority to “take appropriate action
to protect” voting rights, id. § 31.005. None of these statutes creates the
relevant connection between the Secretary and HB 25. Such “general duties
under the [Texas Election] Code” fail to make the Secretary the enforcer of
specific election code provisions. TDP, 978 F.3d at 180 (citing Tex. Elec.
Code §§ 31.003–.004). 7 More is needed—namely, a “connection to the
enforcement of the particular statutory provision that is the subject of the
litigation.” Ibid; see also City of Austin, 943 F.3d at 999–1000 (distinguishing
“general duty” to implement state law from “particular duty to enforce the
statute in question” (quoting Morris, 739 F.3d at 746)). The district court
arrived at the opposite conclusion, relying mistakenly on OCA-Greater
Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017). But that decision
addressed only standing and has no bearing on the Ex parte Young analysis.
See id. at 614 (“Sovereign immunity has no role to play here.”). The general
duties referenced by Plaintiffs fail to show the Secretary’s particular duty to
enforce HB 25. 8
In sum, the Secretary is not a proper defendant under Ex parte Young.
7
See also Bullock v. Calvert, 480 S.W.2d 367, 371–72 (Tex. 1972) (Reavley, J.)
(rejecting argument that Secretary’s role as “chief election officer” or his duty to
“maintain uniformity” in application of election laws is “a delegation of authority to care
for any breakdown in the election process”); In re Hotze, 627 S.W.3d 642, 646 (Tex. 2020)
(Blacklock, J., concurring) (same).
8
For those reasons, we must respectfully disagree with our esteemed colleague’s
erudite dissenting opinion. See post, at 2.
8
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IV.
We REVERSE the district court’s order, VACATE the preliminary
injunction, and REMAND for further proceedings consistent with this
opinion. 9
9
Plaintiffs’ pending motion to dismiss the appeal as moot due to the alleged
expiration of the injunction is DENIED. Even assuming the injunction expired, we can
review under the collateral order doctrine the order denying the Secretary sovereign
immunity. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141
(1993). And even if the appeal were moot, the remedy would be the same as the one we
order here—vacatur. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
9
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Patrick E. Higginbotham, Circuit Judge, dissenting:
I must dissent with this case as well as its companion cases. 1 None
present an issue of sovereign immunity, as the Eleventh Amendment does
not bar these claims under the Fourteenth Amendment. Our issue is rather
the antecedent question of Article III standing, turning on injury and redress-
ability.
I.
I write to remind failing memories of the signal role of Ex parte Young
in directly policing the path of cases and controversies to the Supreme Court
from our state and federal courts and warn against its further diminution. 2 As
I explained over twenty years ago in Okpalobi v. Foster, “Ex parte Young poses
no threat to the Eleventh Amendment or to the fundamental tenets of feder-
alism. To the contrary, it is a powerful implementation of federalism neces-
sary to the Supremacy Clause, a stellar companion to Marbury and Martin v.
Hunter’s Lessee.” 3 Just as then, “the destination of the majority’s trek today
is inevitably a narrowing of the doctrine of Ex parte Young . . . I decline pas-
sage on that voyage. I decline because I am persuaded that familiar principles
1
Lewis v. Scott, No. 20-50654, --- F.4th ---, (5th Cir. March 16, 2022); Richardson
v. Scott, No. 20-50774, --- F. 4th ---, (5th Cir. March 16, 2022).
2
209 U.S. 123 (1908).
3
Okpalobi v. Foster, 244 F.3d 405, 432 (5th Cir. 2001) (Higginbotham, J.
concurring).
10
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of standing are better suited to answer these questions with less risk to the
vital role of Ex parte Young.” 4
The majority continues this Court’s effort to shrink the role of Ex
parte Young, by overly narrow readings of the state officer’s duty to enforce
Texas’s election laws. Unlike in Okpalobi “where the defendants had no en-
forcement connection with the challenged statute,” 5 the Texas Secretary of
State is the “chief election officer of the state” and is directly instructed by
statute to “obtain and maintain uniformity in the application, operation, and
interpretation of this code and of the election laws outside this code.” 6 More-
over, the Secretary is charged to “take appropriate action to protect the vot-
ing rights of the citizens of this state from abuse by the authorities adminis-
tering the state’s electoral processes” and “to correct offending conduct.” 7
Although recent decisions by this Court have split hairs regarding the level
of enforcement authority required to satisfy Ex parte Young, 8 the Secretary is
charged to interpret both the Texas Election Code and the election laws out-
side the Code, including federal law, to gain uniformity, tasks it is clearly
4
Id.
5
OCA-Greater Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017).
6
Tex. Elec. Code § 31.001(a) and Tex. Elec. Code § 31.003.
7
Tex. Elec. Code § 31.005(a), (b).
8
Compare Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir. 2020); City of Austin v.
Paxton, 943 F.3d 993, 1002 (5th Cir. 2019); Morris v. Livingston, 739 F.3d 740, 746 (5th Cir.
2014) with Texas Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020); Texas Democratic
Party v. Abbott, 961 F.3d 389, 401 (5th Cir. 2020); Fusilier v. Landry, 963 F.3d 447, 455 (5th
Cir. 2020); OCA-Greater Houston, 867 F.3d at 613–14.
11
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bound to do. 9 The allegation in these cases is that the Secretary is failing in
that duty. This charge should satisfy our Ex parte Young inquiry.
II.
None other than the inimitable Charles Alan Wright saw Ex parte
Young as “indispensable to the establishment of constitutional government
and the rule of law.” 10 Professor Wright’s views, drawn as they were from a
lifetime of disciplined study stand on their own, gaining their strength from
years of recording judicial performance and the currency of our system by the
teachings of the Constitutional Convention and the acts of our first Congress.
This is the wisdom of a scholar and practitioner, here grounded by the reality
that Ex parte Young brings the axis necessary for the courts to harness the
power vested in them by the Constitutional Convention of 1787—the direc-
tion of the flow to the Supreme Court of challenges to the validity of state
action, a function essential to the splitting of the atom of sovereignty in a sov-
ereign nation of sovereign states in a young republic and today.
The three-judge district courts, with direct appeal to the Supreme
Court, were quickly established as a needed counter to the reach of Ex parte
Young. 11 And with this concern faded by the creation of three-judge district
9
See Texas Democratic Party, 961 F.3d at 401; City of Austin, 943 F.3d at 1002.
10
Charles Alan Wright & Mary Kay Kane, Law of Federal Courts 14 (6th ed. 2002).
11
36 Stat. 557; Michael E. Solimine, The Strange Career of the Three-Judge District
Court: Federalism and Civil Rights, 1956–76, 72 CASE W. RES. L. REV. __, *4–5
(forthcoming); Barry Friedman, The Story of Ex parte Young, in Federal Courts
Stories 269–71 (Vicki C. Jackson and Judith Resnick ed., 2010).
12
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courts, there came a list of seminal decisions protecting civil liberties, long
and distinguished. 12 Recall that it was a three-judge district court, with its
injunctive power, that brought Brown v. Board of Education to the federal
courts, sustaining the integration of public schools. 13
III.
Another strand of history completes the relevant frame for this state-
federal tension. While the need for a Supreme Court was never an issue for
the delegates at the Constitutional Convention, as its absence was a driving
force for its convening, whether to create a tier of lower courts divided the
delegates. The cornerstone Madisonian Compromise resolved the im-
passe—authorizing Congress to create the lower federal courts. And it did,
over resistance born of a concern of potential federal court intrusion into state
affairs, the work of its judiciary. That lingering concern of the Convention
led the first Congress to enact the Anti-Injunction Act: providing that “a writ
12
See e.g., Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S.
510 (1925), aff’g Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary 296 F. 928
(D. Ore. 1924); W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), aff’g Barnette
v. W. Virginia State Bd. of Educ., 47 F. Supp. 251, 252 (S.D.W. Va. 1942); Baker v. Carr,
369 U.S. 186 (1962), rev’g Baker v. Carr, 179 F. Supp. 824 (M.D. Tenn. 1959); Younger v.
Harris, 401 U.S. 37 (1971), rev’g Harris v. Younger, 281 F. Supp. 507, 508 (C.D. Cal. 1968);
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), rev’g Rodriguez v. San Antonio
Indep. Sch. Dist., 337 F. Supp. 280, 281 (W.D. Tex. 1971); Roe v. Wade, 410 U.S. 113 (1973),
aff’g Roe v. Wade, 314 F. Supp. 1217, 1219 (N.D. Tex. 1970).
13
347 U.S. 483 (1954); Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 98 F.
Supp. 797 (D. Kan. 1951), rev’d sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294
(1955). See also Briggs v. Elliot, 98 F. Supp. 529 (E.D.S.C. 1951) and Davis v. County School
Bd., 103 F. Supp. 337 (E.D. Va. 1952).
13
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of injunction [shall not] be granted to stay proceedings in any court of a
state,” assuring direct review of state courts by the Supreme Court. 14 An ex-
ception clause later added: “except as expressly authorized by Act of Con-
gress, or where necessary in aid of its jurisdiction, or to protect or effectuate
its judgments.” 15 And there it rested, through the Civil War with its attend-
ing Constitutional amendments.
With the turn of the century, we entered the Lochner period, charac-
terized by federal injunctions blocking state efforts to address social issues in
the rising industrial world. 16 It is significant that from Reconstruction to the
Lochner era, lawyers seldom reached for § 1983 given its inclusion of the lan-
guage of the Privileges and Immunities Clause, language neutered in the
Slaughterhouse cases. 17 In more recent times, § 1983 came to be a major path-
way to the lower federal courts, prompting challenges to its injunctive power
as violating the Anti-Injunction Act. The Supreme Court’s response sheds
light on the wielding and melding of federal injunctions and our federalism.
From these threads of history, the Supreme Court in Mitchum v. Foster
laid bare the subtle relationship of the Anti-Injunction Act, § 1983, and Ex
parte Young. The Court saw the then sixty-four-year-old Ex parte Young as a
critical valve to direct the flow of cases from the state courts to the Supreme
14
1 Stat. 334 § 5 (1793).
15
28 U.S.C.A. § 2283 (West).
16
Lochner v. New York, 198 U.S. 45 (1905).
17
83 U.S. 36 (1872).
14
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Court. 18 Justice Stewart explained that “Section 1983 was thus a product of
a vast transformation from the concepts of federalism that had prevailed in
the late 18th century when the anti-injunction statute was enacted.” 19 Con-
gress was “concerned that state instrumentalities could not protect those
rights; it realized that state officers might, in fact, be antipathetic to the vin-
dication of those rights; and it believed that these failings extended to the
state courts.” 20 He continued:
The very purpose of § 1983 was to interpose the federal courts
between the States and the people, as guardians of the people’s
federal rights—to protect the people from unconstitutional ac-
tion under color of state law, “whether that action be execu-
tive, legislative, or judicial.” 21
Mitchum v. Foster is itself a contemporary example of the on-going allocation
of the flow of cases to the Supreme Court from the state courts and the Con-
gressionally created lower federal courts, as well as the role of Ex parte Young
in that cast.
In sum, Ex parte Young, birthed as a tool of the Lochner period, proved
its effectiveness in sustaining challenges to state efforts to protect workers.
Mitchum v. Foster presents as a parallel—protecting civil rights—giving to
18
Mitchum v. Foster, 407 U.S. 225, 242 (1972).
19
Id.; 42. U.S.C. § 1983.
20
Mitchum, 407 U.S. at 242.
21
Id. (quoting Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 (1879)).
15
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civil rights claimants a § 1983 with the power of the injunction, albeit not al-
ways a path around the Eleventh Amendment.
IV.
Here however, as it was in Okpalobi, the threshold question is stand-
ing, the Article III door to the federal courthouse, which the majority stepped
past. Standing doctrine was a product of the shift to the public law model.
With its focus upon injury and redressability, it rejected an ombudsman role
for the federal courts. Here, as all three of our cases bring claims of constitu-
tional violation under § 1983, there is no immunity issue, no necessary role
for Ex parte Young. 22 As the state has no immunity from enforcement of the
Fourteenth Amendment here, 23 the remaining inquiry is standing—itself a
constitutional demand of injury and redressability. 24
Under a proper Article III analysis, these suits have a redressable in-
jury because the Secretary is directed by the election laws of Texas to inter-
pret and conform the election code to other election laws (as federal law is
state law). Power to interpret to gain uniformity with state and federal law is
22
These three cases also present claims under the Voting Rights Act and the
Americans with Disabilities Acts, where Congress has specifically abrogated state
sovereign immunity. See e.g., Tennessee v. Lane, 541 U.S. 509, 534 (2004); Fusilier, 963 F.3d
at 455; OCA-Greater Houston, 867 F.3d at 614.
23
Reynolds v. Sims, 377 U.S. 533, 537 (1964); Fitzpatrick v. Bitzer, 427 U.S. 445, 454
(1976).
24
E.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
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power to enforce. 25 And “our precedent suggests that the Secretary of State
bears a sufficient connection to the enforcement of the Texas Election
Code . . . to support standing.” 26 Again, the claim is that the Secretary failed
to discharge that duty or has done so in an unconstitutional manner. These
claims can proceed if there is standing with its requirement of injury and re-
dressability.
In sum, I am persuaded that these cases ought not fail on standing or
sovereign immunity grounds. Rather, we should have fully considered the
merits of the plaintiffs’ arguments, especially where these cases also present
claims under the Voting Rights Act and Americans with Disabilities Act, thin
though they all may be. 27
V.
Even this quick glance back sheds light on threshold questions of the
role of the Court in protecting the most vital Constitutional right of a demo-
cratic government: the right to vote. And so, I am troubled by this Court’s
narrowing of Ex parte Young. Ex parte Young is no culprit. 28
25
Tex. Elec. Code § 31.001(a) and Tex. Elec. Code § 31.003. See Testa v. Katt, 330
U.S. 236 (1947).
26
Texas Democratic Party, 961 F.3d at 401 (citing OCA-Greater Hous., 867 F.3d at
613).
27
See e.g., Lane, 541 U.S. at 534; Fusilier, 963 F.3d at 455; OCA-Greater Houston,
867 F.3d at 614.
28
Okpalobi, 244 F.3d at 432.
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About this we can agree, partisan views ought to prevail by persuading
voters, not by denying their right to vote. With respect to my able colleagues,
I must dissent.
18