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In the United States Court of Appeals for the Fifth Circuit

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In the United States Court of Appeals for the Fifth Circuit Case: 20-50407 Document: 00515422958 Page: 1 Date Filed: 05/20/2020 No. 20-50407 In the United States Court of Appeals for the Fifth Circuit Texas Democratic Party, Gilbert Hinojosa, Chair of the Texas Democratic Party, Joseph Daniel Cascino, Shanda Marie Sansing, and Brenda Li Garcia, Plaintiffs-Appellees v. Greg Abbott, Governor of Texas, Ruth Hughs, Texas Sec- retary of State, Ken Paxton, Attorney General of Texas, Defendants-Appellants. On Appeal from the United States District Court for the Western District of Texas, San Antonio Division EMERGENCY MOTION FOR STAY PENDING APPEAL AND TEMPORARY ADMINISTRATIVE STAY Ken Paxton Kyle D. Hawkins Attorney General of Texas Solicitor General [email protected] Jeffrey C. Mateer First Assistant Attorney General Lanora C. Pettit Assistant Solicitor General Ryan L. Bangert Deputy First Assistant Office of the Attorney General Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 Counsel for Defendants-Appellants Case: 20-50407 Document: 00515422958 Page: 2 Date Filed: 05/20/2020 Certificate of Interested Persons No. 20-50407 Texas Democratic Party, Gilbert Hinojosa, Chair of the Texas Democratic Party, Joseph Daniel Cascino, Shanda Marie Sansing, and Brenda Li Garcia, Plaintiffs-Appellees v. Greg Abbott, Governor of Texas, Ruth Hughs, Texas Sec- retary of State, Ken Paxton, Attorney General of Texas, Defendants-Appellants. Under the fourth sentence of Fifth Circuit Rule 28.2.1, appellants, as govern- mental parties, need not furnish a certificate of interested persons. /s/ Kyle D. Hawkins Kyle D. Hawkins Counsel of Record for Defendants-Appellants i Case: 20-50407 Document: 00515422958 Page: 3 Date Filed: 05/20/2020 Introduction and Nature of Emergency Yesterday evening, the district court below issued a preliminary injunction pre- venting Texas officials from enforcing critical anti-fraud provisions of the Texas Election Code mere weeks before an election and days before mail-in ballots are dis- tributed to eligible voters. Exhibit A. The provisions at issue, Texas Election Code sections 82.001-004, provide exceptions to Texas’s general requirement that all vot- ers vote in person. Sections 82.001-004 allow voting by mail for voters physically absent from their county, or suffering from a “disability”—that is, “a sickness or physical condition”—or over 65, or incarcerated. The Texas Legislature believes mail-in balloting should be limited because in-person voting is the surest way to pre- vent voter fraud and guarantee that every voter is who he claims to be. The district court below has now overridden that policy choice. Announcing that “the entire world is . fearfully disabled” due to its lack of immunity to the ongoing global pandemic, the district court declared that Texas’s decision to limit voting-by- mail to only a small subset of voters violates the First, Fourteenth, and Twenty-Sixth Amendments. It ordered: “Any eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive, and cast an absentee ballot in upcoming elections during the pendency of pandemic circumstances.” Id. at 9. And it enjoined the Texas Governor, Attorney General, and Secretary of State “from issuing any guidance, pronouncements, threats of criminal prosecution or or- ders, or otherwise taking any actions inconsistent with this Order.” Id. at 9-10. The district court manifestly erred. Indeed, later today, the Texas Supreme Court will hear oral argument on the proper interpretation of section 82.002. Exhibit Case: 20-50407 Document: 00515422958 Page: 4 Date Filed: 05/20/2020 B. With the State’s highest court on the verge of deciding a question of state law, the district court had a clear duty to abstain from weighing in—yet it went ahead anyway because “[ab]stention would take considerable time.” Ex. A at 73. The district court also lacks jurisdiction, because the plaintiffs present political questions against the wrong defendants that are in any event barred by sovereign immunity. And they can- not succeed on the merits, since no provision of the Constitution allows a federal court to order a State to let everyone vote by mail. This Court should enter a stay pending appeal, and it should immediately enter a temporary administrative stay while it considers this application. Over the past two months, this Court has entered multiple stays pending appeal and temporary admin- istrative stays of “patently wrong,” In re Abbott, 954 F.3d 772, 795 (5th Cir. 2020), district court orders like this one. See id.; see also In re Abbott, 800 F. App’x 293, 296 (5th Cir. 2020); Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020). It should do the same here. Appellants have brought this motion directly to this Court under Federal Rule of Appellate Procedure 8(a)(2) because it is impracticable to seek relief before the district court. Election officials will begin distributing mail-in ballots next week; time is of the essence Background I. Texas Law Requires In-Person Voting Except in Narrow Circum- stances. Most Texas voters vote in person. They may apply to vote by mail in only one of four instances—they: (1) anticipate being absent from their county of residence; 2 Case: 20-50407 Document: 00515422958 Page: 5 Date Filed: 05/20/2020 (2) have a disability that prevents them from appearing at the polling place; (3) are 65 or older; or (4) are confined in jail. Tex. Elec. Code §§ 82.001-.004. These rules are primarily enforced at the county level by early-voting clerks. Id. §§ 83.005, 86.001(a). The Appellants are Texas Governor Gregg Abbott, Attorney General Ken Pax- ton, and Secretary of State Ruth Hughs. Neither Governor Abbott nor Secretary of State Hughs enforce the above provisions. See id. Attorney General Paxton carries broad authority to prosecute voter fraud. Tex. Elec. Code § 273.021. II. Appellants’ Are Working Diligently to Ensure the Safety of In-Person Voting. On March 13, 2020, Governor Abbott declared a state of disaster in all of Texas’s 254 counties. Tex. Gov. Proclamation (Mar. 13, 2020 11:20 a.m.). Almost immediately, he began adopting measures to protect the uniformity and integrity of elections. These actions include, for example, postponing a May 26, 2020 primary runoff to July 14, 2020. Tex. Gov. Proclamation (Mar. 20, 2020 6:35 p.m.). Most recently, on May 12, the Governor issued a proclamation expanding early voting for the July 14 election. See Exhibit C. The proclamation doubled the time period allowed for “early voting by personal appearance,” id. at 3, “to ensure that elections proceed efficiently and safely when Texans go to the polls to cast a vote in person during early voting or on election day,” id. at 2 (providing election officials with sufficient time to “implement appropriate social distancing and safe hygiene practices”). 3 Case: 20-50407 Document: 00515422958 Page: 6 Date Filed: 05/20/2020 The Secretary of State has also issued several advisories. For example, she quickly alerted election officials to the Governor’s May 11 proclamation. Exhibit D. The advisory explained that, in very short order, the Secretary of State would pro- vide “detailed recommendations for protecting the health and safety of voters and election workers at the polls” and work closely with election officials “to ensure that our elections are conducted with the utmost safety and security.” Id. The Secretary had intended to send that guidance this morning, but now will delay her actions due to the uncertainty caused by the district court’s injunction. Election officials may distribute mail-in ballots next week. See Tex. Elec. Code § 86.004(b) III. Several Groups Sue in State Court to Compel Election Officials to Ex- pand Voting by Mail. In late March, several organizations and voters (including Appellees) filed a law- suit against the Travis County Clerk, one of the local officials charged with enforcing the law, aimed at expanding voting by mail to all Texans. See Exhibit E. They asked the court to declare that “any eligible voter, regardless of age and physical condi- tion,” may vote by mail “if they believe they should practice social distancing in or- der to hinder the known or unknown spread of a virus or disease.” Id. at 10. The clerk did not oppose the plaintiffs’ request for a temporary injunction. The trial court obliged, prohibiting Appellants from “taking actions that during all elections af- fected by the COVID-19 pandemic, that would prohibit individuals from submitting mail ballots based on the disability category.” Exhibit F at 5. The State—which had intervened to protect the integrity of Texas law—imme- diately filed a notice of interlocutory appeal. Exhibit G. Under the Texas Rules of 4 Case: 20-50407 Document: 00515422958 Page: 7 Date Filed: 05/20/2020 Appellate Procedure, the trial court’s temporary injunction was superseded and stayed upon the State’s appeal. Tex. R. App. P. 29.1(b); In re State Bd. for Educator Certification, 452 S.W.3d 802, 805 (Tex. 2014). Appellees, however, continued to act as if the state-court injunction was in effect. In response to the “public confusion” caused by the Travis County lawsuit, the Attorney General provided guidance to county election officials on May 1, 2020. Ex- hibit H. “Based on the plain language of the relevant statutory text, fear of contract- ing COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code,” he explained. Id. at 1. And he further explained that the then-stayed state-court injunction “does not change or suspend these requirements.” Id. at 2-3; see also Exhibit I.
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