Take the Fifth: Oct. 19, 2020 opinions

Designated for publication

  • Richardson v. Hughs, 20-50774, appeal from W.D. Tex.
    • Smith, J. (Higginbotham, Smith, Oldham), Higginbotham, J., concurring; election law, sovereign immunity
    • Staying, pending appeal, the district court’s injunction of Texas’s procedures regarding mail-in ballot signature verification and voter-notification procedures.
    • Texas’s absentee mail-in balloting procedures–a system that, as confirmed by 5th Circuit’s October 14th decision in Texas Democratic Party v. Abbott, applies only to voters 65 and older, those meeting certain disability requirements, those in jail, or those otherwise absent from the county on election day–include a signature-verification process. That process requires the absentee voter to sign a request for an absentee ballot, and then, after receiving and filling out the absentee ballot, to sign a “carrier” envelope returning that ballot. Each county has a committee system whereby a designated committee reviews the two signatures, and any other signatures that the county may have on file from the previous six years, and determine whether the ballot is signed by the voter. If it is determined that the ballot is not signed by the voter, the ballot is rejected and placed in an envelope with other rejected ballots. Within ten days after the election, voters must be notified of their rejected ballots, and within thirty days after the election the county’s committee must notify the state attorney general of the rejected ballots and provide certified copies of those rejected ballots with carrier envelopes. While the voter must be notified of the ballot-rejection, the Texas procedure does not require that the voter be given an opportunity to challenge that rejection.
    • The district court issued a preliminary injunction adopting an alternative set of signature-verification procedures, requiring the Texas Secretary of State to issue an advisory to county election officials informing them that they either must abide by the new procedures or cease rejecting altogether absentee ballots with mismatched signatures, and mandating the Secretary of State to take action against any county election officials who failed to comply.
    • The Court held that that the Secretary of State was likely to succeed on the merits of the appeal, holding that the plaintiffs failed to meet their burden of showing a cognizable liberty or property interest sufficient to trigger constitutional due process protections. The Court held first that no court has ever held that the right to vote is a protectable property interest. The Court then turned to whether the right to vote–specifically the right to absentee vote by mail–is a liberty interest that triggers due process protections. The Court held that the right to vote is not a state-created liberty interest, then turned to whether it is a liberty interest arising from the Constitution, which it noted at first blush could seem to be. “After all, the right to vote is a fundamental constitutional right. But that helps the plaintiffs with their equal protection claim, not their procedural due process claim. For procedural due process, the question is not whether the plaintiffs assert a fundamental right, but instead whether the right they assert is a liberty interest. Besides describing the right to vote as fundamental, the plaintiffs have not explained what there is about the right to vote that makes it a liberty interest.” The Court then held it was even less likely that the plaintiffs would succeed in proving that the right to vote absentee by mail constituted a protected liberty interest, particularly in light of the Court’s own holdings within the past week that there is no protected right to absentee mail-in voting.
    • The Court then held that, even if there were a protectable liberty or property interest, the district court applied the wrong analytical framework in determining what process would be due, and that it should instead of applied the framework under Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). The Anderson/Burdick framework “recognizes that ‘the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.'” (Quoting Anderson).
    • The framework requires a two-part analysis of the existing Texas absentee mail-in ballot signature-verification procedures: “(1) whether the process poses a severe or instead a reasonable, nondiscriminatory restriction on the right to vote and (2) whether the state’s interest justifies the restriction.” (Internal quotation marks and citations omitted). The Court held that the district court erred in its analysis under the first factor by focusing on the burden only on those voters whose ballots were rejected, because the burden imposed by the process must be analyzed by looking at the burden on all voters as a whole. The Court then found that the burden on absentee voters was not severe, because the burden of having to sign the carrier envelope is less severe than photo-ID requirements that have been found to not be a severe burden under the Anderson/Burdick framework. “Even if some voters have trouble duplicating their signatures, that problem is neither so serious nor so frequent as to raise any question about the constitutionality of the signature-verification requirement. … And mail-in ballot rules that merely make casting a ballot more inconvenient for some voters are not constitutionally suspect.” (Internal quotation marks and citations omitted).
    • The Court then held that Texas’s interest in preventing voter fraud justifies its signature-verification process. The Court held that there is an increased possibility of voter fraud for mail-in ballots, and rejected the district court’s imposition of a burden on the state to provide evidence of actual voter fraud in the case of mismatched signatures. “States may respond to potential deficiencies in the electoral process with foresight rather than reactively. States have thus never been required to justify [their] prophylactic measures to decrease occasions for vote fraud.” The Court then held that the district court erred in applying a requirement that the state’s election regulations must be narrowly tailored to the identified interest.
    • The Court then held that the Secretary of State was likely to succeed on the merits of her appeal on the issue that the state’s sovereign immunity prevented the district court from issuing the mandatory injunction on procedures she must employ, under Ex parte Young. “Although the question remains whether sovereign immunity bars all affirmative injunctions, the present injunction is impermissible because it would control the Secretary in her exercise of discretionary functions.”
    • Judge Higginbotham concurred in the judgment. He opined, “The Secretary of State has shown a substantial likelihood of success on the merits, and the district court’s ruling has been stayed to allow this Court to decide the merits of the case. Well enough, but the reality is that the ultimate legality of the present system cannot be settled by the federal courts at this juncture when voting is already underway, and any opinion on a motions panel is essentially written in sand with no precedential value—its reach is to delay, not to finally decide the validity of the state regulation.”
    • Judge Higginbotham seemed particularly disturbed by the reach of the majority opinion: “I would not attempt to settle our circuit’s law on such complex and delicate questions in a preliminary ruling that has not benefitted from oral argument or collegial discussions. And a decision by this motions panel granting a stay settles no law. To the contrary, it has no precedential force and is not binding on the merits panel, leaving it as a writing in water—made the more empty by pretermitting the jurisdictional requisites of sovereignty and the reach of Ex parte Young.”
    • Judge Higginbotham decried the lack of collegial discussion, the “fluidity” of the Court’s shifting decisions on elections issues, and the participation of the Court in political operations: “The matter is yet to travel its ordinary course to be settled by a fully considered opinion by the merits panel, perhaps then by the en banc Court. This reality is brought home by the changing opinions of my colleagues as the Court responds to legal challenges in the electoral process as conflicting opinions in other circuits indicate. Here, we proceed without collegial conference on a motions panel and need not as a panel traverse numerous paths and crossroads engaging significant issues whose impact on our voting-rights jurisprudence remains contested, including standing and the reach of Ex parte Young, core principles of federalism. To do so would expose shifting views on these issues—a fluidity of view that unwittingly would present this Court as a volunteer in a political fight.”
    • Judge Higginbotham wrote in particular to express his disagreement with the majority’s decision on the issue of sovereign immunity under Ex parte Young: “In my view, the Secretary is a proper defendant under Ex parte Young. More to the point, it is the controlling law in this circuit. In pretermitting rather than accepting that reality, my colleagues cling to their view expressed last month that the Secretary lacks the enforcing authority under state law necessary to a federal suit enjoining her enforcement of an assertedly unconstitutional state statute and casting doubt on whether the Court is bound by its recent case law because that case law might yet be considered en banc. This fluidity counsels caution in wading into a change of election rules while voting is underway in an election charged with distrust of the political process—at its heart breeding doubt that one’s vote will count.”
    • As to the merits of whether to stay the district court’s injunction pending appeal, Judge Higginbotham noted that, with voting under way, with the Texas rules at issue having long been in place, and with final decision in the federal courts on many of these issues likely to not be reached until after the November 2020 election, judicial restraint counseled in favor of preserving the status quo of the existing Texas law and staying the district court’s injunction pending appeal, recognizing that the longer-term effect past the imminent election required a preservation of the status quo until a fully considered appeal process can run its course. Then, Judge Higginbotham offered his own observations on the rightful place of the judiciary in ushering through the rightful expansion of the franchise: “Relying on the old wisdom that looking to the path traveled can give direction to the road ahead, we see that while the road of right to vote has at times been nigh impassable as it rolled past people of color, women, and the poor, it has in the long view tracked the expansion of civil rights, reflecting to these eyes a maturation of individual liberty. Sometimes one step forward with two steps back, but the arc has been its expansion with which partisans ought make peace, accepting the bedrock principle that disenfranchising citizens is not a fallback to a failure to persuade. It is a given both that states must protect citizens’ fundamental right to vote, resisting in that effort tempting cover for partisan objectives, and that their efforts remain reviewable with the disinterest demanded by the architects of our Constitution, insisting that judges of federal courts it would create be as ‘independent as the lot of humanity will admit’—counsel wise and prescient offered as it was before the arrival of political parties, a charge implicit in the oath of us all whether modern day federalists or Jeffersonians.”


  • U.S. v. Solorzano, 17-11342, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Higginson), criminal, sentencing, search and seizure, sufficiency of evidence
    • Affirming conviction for drug trafficking, assaulting two federal officers, and using a firearm in relation to a crime of violence, but vacating 567-month sentence and remanding to district court for resentencing.
    • Court rejected Fourth Amendment arguments regarding a traffic stop and a use of a tracking device. Court rejected argument regarding sufficiency of the evidence to support the conviction. Court found plain error in the district court’s application of the six-level enhancement for an official victim, since it was undisputed that defendant did not know the two people he shot at were federal agents and therefore was not motivated by their status.
  • U.S. v. Anderson, 18-10624, appeal from N.D. Tex.
    • per curiam (Higginbotham, Elrod, Haynes), habeas corpus
    • Affirming district court’s denial of Certificate of Appealability on petitioner’s § 2255 request for an evidentiary hearing.
  • Park v. Direct Energy LP, L.L.C., 19-20878, appeal from S.D. Tex.
    • per curiam (Smith, Clement, Oldham), Family and Medical Leave Act, jurisdiction
    • Affirming district court’s grant of summary judgment dismissing plaintiff’s claim against employer under the Family and Medical Leave Act. Vacating district court’s grant of summary judgment dismissing defendant’s counter-claim and remanding to district court with instructions to dismiss that counter-claim for lack of subject-matter jurisdiction.