Take the Fifth: Oct. 14, 2020 opinions

Posted on by tadbartlett

To create a little efficiency for the writers of this blog, Take the Fifth will take a different tack beginning today. We will continue to include full summaries of those opinions designated for publication, but for unpublished opinions will only continue to provide links to the opinions and basic statistical information regarding basic outcome, district court appealed from/agency decision being petitioned, opinion author, and general category of case.

  • Texas Democratic Party v. Abbott, 20-50407, appeal from W.D. Tex., designated for publication
    • Southwick, J. (King, Stewart, Southwick), Stewart, J., labeled as concurring in part and dissenting in part but really just outright dissenting; election law
    • Vacating district court’s preliminary injunction of Texas statute that allows only voters 65 and older to cast mail-in absentee ballots and those younger than 65 only if they will be absent from the county on election day or have a qualifying disability, and remanding. Court had already granted a stay of the preliminary injunction pending appeal.
    • Plaintiffs defended the injunction “on the basis that the vote-by-mail privilege for older voters is unconstitutional under the Twenty-Sixth Amendment’s prohibition against denying or abridging the right to vote on account of age.” Plaintiffs had initially brought suit in Texas state courts, seeking to have the lack of immunity to (and fear of contracting) Covid-19 declared a qualifying disability under Texas’s absentee-voting statute. After a somewhat circuitous route, on May 27 the Texas Supreme Court “‘that a lack of immunity to COVID-19 is not itself a “physical condition” for being eligible to vote by mail within the meaning of [Section] 82.002(a).’ In re Texas, 602 S.W.3d at 560. A voter may ‘take into consideration aspects of his health and his health history’ in deciding whether to apply to vote by mail, but COVID-19 is not itself a ground for voting by mail.”
    • Meanwhile, in this federal action, plaintiffs brought claims against the Texas Secretary of State and other Texas officials that the statute and their administration of it violated the First, Fourteenth, and Twenty-Sixth Amendments. The federal district court on May 19 “issued an order requiring no-excuse mail-in balloting in Texas, meaning that ‘[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19’ could do so.”
    • The Court held that the individual voter plaintiffs had standing to bring their claims against the Texas Secretary of State, which was sufficient to resolve the issue of standing as to all plaintiffs and claims.
    • The Court next addressed the Ex parte Young exception to sovereign immunity, holding that “[d]etermining whether Ex parte Young applies to a state official requires a provision-by-provision analysis, i.e., the official must have the requisite connection to the enforcement of the particular statutory provision that is the subject of the litigation. This is especially true here because the Texas Election Code delineates between the authority of the Secretary of State and local officials.” The Court found that the Secretary of State is responsible for designing and disseminating the application form for an absentee ballot and that, “[t]hough there is a division of responsibilities [between the Secretary and local officials], the Secretary has the needed connection.” The Court held, however, that the requisite connection between the Governor and enforcement of the statutory provision was lacking, as was the requisite connection to the state’s Attorney General.
    • Turning to the political question doctrine, the Court held that, even though policy-based questions regarding response to the pandemic were tangential to the case, there was no political question impediment to plaintiffs’ Constitutional-challenge claims. “Judicially discoverable and manageable standards exist to help us determine whether the law runs afoul of the Twenty-Sixth Amendment. Namely, we determine whether the law denies or abridges the plaintiffs’ right to vote based on age. If it does, then we will apply an appropriate level of scrutiny. The effects of the pandemic are relevant to answering whether the law denies or abridges the right to vote, but the standards themselves do not yield to the pandemic.”
    • On the merits of the Twenty-Sixth Amendment challenge to the Texas statute (the only basis on which plaintiffs defended the district court’s injunction in their briefing to the Court), the Court first held that there was, essentially, a private right of action for violation of the Amendment, holding “that the Twenty-Sixth Amendment confers an individual right to be free from the denial or abridgment of the right to vote on account of age, the violation of which allows for pursuing a claim in court.”
    • The Court next held that the granting of an unqualified right to vote by mail-in absentee ballot to people 65 and older was not an abridgement or denial of the right to vote for those under 65. The Court examined the meaning of the phrase “right to vote” at the time the Amendment was ratified in 1971. The Court turned to the 1969 Supreme Court decision in McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807–08 (1969), which concerned whether the denial of mail-in ballots to incarcerated persons denied them the right to exercise the franchise, and which held, “thus not the right to vote that [was] at stake [t]here but a claimed right to receive absentee ballots.” The Court also examined the corpus of state absentee voting laws and the provisions regarding absentee voting in the 1970 Voting Rights Act, to hold that the predominant understanding of the right to vote at that time, with regard to absentee voting, was that absentee voting should be made available to those who would not be present in their voting locale on election day.
    • The Court then examined the meaning of the word “denied,” and determined that such denial only happens if voting is absolutely prohibited. The Court held no denial was at issue here.
    • The Court then turned to the meaning of “abridged,” holding that the term means a reduction or diminishment, which requires a comparison between the baseline of opportunity to vote without the statute in question and the opportunity to vote with the statute in question. The Court rejected outright a construction that would hold that, any time the right to vote is subjected to an indulgence in favor of one age group of voters–such as Texas’s 1975 statute allowing those 65 and older access to absentee voting without having to provide any other reason besides their age–such an indulgence must be provided to all age groups of voters to avoid “abridgement.” Instead, the Court held that the proper formulation of the analytical framework is: “More consistent with the text of the Twenty-Sixth Amendment is for us to evaluate whether younger voters’ rights were reduced by the addition of a privilege for older voters.”
    • Distinguishing a line of cases under the Fifteenth Amendment, the Court observed, “[W]e fail to see that when Texas granted a privilege to older voters, it was reducing or handicapping the rights of younger voters. It failed to enhance rights for younger voters, but that is not the equivalent of abridging.” The Court concluded its textual analysis by holding, “based on the meaning of the word ‘abridged,’ that the right to vote under the Twenty-Sixth Amendment is not abridged unless the challenged law creates a barrier to voting that makes it more difficult for the challenger to exercise her right to vote relative to the status quo, or unless the status quo itself is unconstitutional. Thus, conferring a privilege on one category of voters does not alone violate the Twenty-Sixth Amendment.”
    • Under this holding as to the textual scope of the Twenty-Sixth Amendment, the Court held that the Texas statute did not facially violate the Amendment. The Court then determined that the pandemic did not create an as-applied violation of the Amendment. “As to abridgement, voters under age 65 did not have no-excuse absentee voting prior to the pandemic. Further, requiring many to vote in person during this crisis, with safety measures being imposed and some flexibility as to ‘disability’ being shown, does not amount to an unconstitutional status quo. The real issue here is equal protection, and that is not before us.”
    • The Court then made a point to state that the holding of the motions panel on the initial grant of a stay of the injunction pending appeal, that the district court had been wrong to apply strict scrutiny review to the statute, was dicta, and that on remand to consider the other bases of possible Constitutional infirmity the district court should in the first instance consider what level of scrutiny applied; though the Court went on to state, “Even so, we state that we have not seen any authority to support that it would require strict scrutiny as the district court initially applied.”
    • Judge Stewart is labeled as concurring in part and dissenting in part, though he writes, “A consideration of the statute under the plain text of the Twenty-Sixth Amendment leads me to conclude that the statute, as applied during the pandemic, is likely unconstitutional and that therefore the district court did not err in determining Plaintiffs have a substantial likelihood of success on the merits.” If this is a concurrence in part, that “part” is a mere scintilla.
    • Judge Stewart took issue with the majority’s baseline-comparison formulation of “abridge” and the cases as relied on by the majority: “Reno, Katzenbach, and Luft persuade me to read ‘denial or abridge’ in the Twenty-Sixth Amendment as generally prohibiting states from depriving individuals of the equal opportunity to vote based on a protected status. The panel majority does not cite any case that compels an understanding of ‘abridge’ in the context of a voting rights amendment that requires a plaintiff’s position to be worsened. Though the panel majority relies on Lane v. Wilson and an ‘onerous procedural requirement’ as violative of the Fifteenth Amendment, the Supreme Court does not state that such an onerous procedural requirement is necessary to find abridgment. 307 U.S. 268, 275 (1939). In fact, Lane states that ‘[t]he Amendment nullifies sophisticated as well as simple-minded modes of discrimination.’ Id. In this case, we have straightforward facial discrimination, while Lane dealt with a complicated scheme with severely discriminatory impacts without a facial classification.”
    • Judge Stewart also engaged in an extensive review of legislative history of the Twenty-Sixth Amendment, observing, “On balance, I conclude that the legislative history does not favor the panel majority’s holding.”
    • Finally, Judge Stewart turned briefly to the issue of the level of scrutiny, but found that, under any scrutiny level, the Texas statute should be found wanting. As to Texas’s stated interest in protecting election integrity against voter fraud, Judge Stewart analyzed the various safeguards in place against fraud in mail-in voting and observed, “Given the dearth of evidence of voter fraud and the ample tools available to promote election integrity, Defendants have not identified a legitimate government interest in enforcing § 82.003 within the context of a global pandemic.”
  • Vota v. Abbott, 20-50793, appeal from W.D. Tex., designated for publication
    • Owen, C.J. (Owen, Davis, Southwick), election law
    • Affirming in part the district court’s dismissal of plaintiff’s suit challenging certain Texas voting procedures, but reversing in part as to the application of the Voting Rights Act, and remanding.
    • Plaintiffs brought suit seeking mandatory injunctive relief regarding various voting procedures, challenging Texas’s exception from mandatory mask-wearing for voters and poll workers, permission for voters “physically unable to enter polling locations” to vote curbside, permitting certain counties to participate in the County-Wide Polling Place Program, and concerning the number and location of early voting locations. Plaintiffs contended that, because minority populations were disproportionately impacted by Covid-19, the injunctive relief was necessary under various Constitutional provisions, as well as under section 2 of the Voting Rights Act. The district court dismissed their complaint as raising an non-justiciable political question; the state-entity defendants also urged dismissal on the basis of sovereign immunity and lack of standing.
    • The Court held that the plaintiffs’ Voting Rights Act claim did not present a non-justiciable political question, but did not analyze their other claims for political question because it held they should be dismissed on other grounds.
    • The Court held that all of the remaining claims against Governor Abbott and Secretary of State Hughs were barred by sovereign immunity because, while they each had various authority to, for example, issue executive orders regarding mask-wearing at polling places, or to administer the County-Wide Polling Place Program, the actual enforcement of those executive orders or the decisionmaking to engage in practices to qualify a county for participation in the County-Wide Polling Program all fall to local authorities. Therefore, the Court held that there was not a requisite connection between the state officials’ authority and the injunctive relief requested in order to trigger the Ex parte Young exception to sovereign immunity.
    • The Court then opined that, as to the alleged Voting Rights Act violations, there was little that the district court would have authority to mandate that has been requested by plaintiffs; that federal courts have federalism-based limits on what they can order a state official to affirmatively promulgate, particularly without running afoul of the Supreme Court’s admonition against last-minute elections-related rulings that could up-end or cause confusion about the election. “We see a possible exception, however, with regard to the November 2020 election. Were the district court to conclude that the exemption from wearing a mask in public places contained in Executive Order GA-29 for poll workers, voters, and others in polling places violated section 2 of the Voting Rights Act, the district court might excise that provision if it concluded that this would redress the injuries the Plaintiffs have alleged. It is at least conceivable that such a remedy would not materially or substantially affect the ongoing election, but that would be a matter for the district court to determine.

Unpublished opinions

  • U.S. v. Jones, 19-20709, appeal from S.D. Tex.
    • per curiam (Graves, Costa, Engelhardt), criminal, sentencing
    • Affirming judgment of district court on resentencing.
  • Balah v. Barr, 19-60334, petition for review of BIA order
    • per curiam (Jolly, Elrod, Graves), immigration
    • Denying petition for review.
  • U.S. v. Gomez, 20-10090, appeal from N.D. Tex.
    • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
    • Affirming sentence.
  • U.S. v. Drakes, 20-30091, appeal from W.D. La.
    • per curiam (Davis, Stewart, Dennis), sentencing, First Step Act
    • Affirming district court’s judgment denying motion for sentence reduction.
  • U.S. v. Conner, 20-30338, appeal from W.D. La.
    • per curiam (Dennis, Southwick, Engelhardt), criminal, compassionate release
    • Denying defendant’s motion for appointment of counsel for untimely appeal, granting government’s motion to dismiss appeal, and denying without prejudice request in defendant’s letter to Court requesting compassionate release.