Andrade v. Naacp of Austin

287 S.W.3d 240

Esperanza ANDRADE, in her official capacity as Secretary of State for the State of Texas, Appellant, v. NAACP OF AUSTIN, Nelson Linder, Sonia Santana and David Van Os, Appellees.

No. 03-08-00076-CV.

Court of Appeals of Texas, Austin.

April 10, 2009.

Kathlyn C. Wilson, Office of Atty. Gen., Austin, TX, for Appellant.

James C. Harrington, Austin, TX, for Appellee.

Before Justices PATTERSON, WALDROP and HENSON.

OPINION

JAN P. PATTERSON, Justice.

Appellees NAACP of Austin, Nelson Linder, Sonia Santana, and David Van Os sought declaratory and injunctive relief against the Secretary of State for the State of Texas,¹ alleging that the Secretary acted outside her statutory and constitutional authority when she certified the paperless computerized voting machine and system currently used in Travis County.² In this interlocutory appeal, the Secretary contends that the trial court erred in denying her plea to the jurisdiction, filed on the grounds of sovereign immunity and standing. Because we conclude the trial court has subject matter jurisdiction over this suit, we affirm the trial court's order denying the plea to the jurisdiction.

BACKGROUND

Appellees brought suit in June 2006 against the Secretary for "failure to provide voting procedures that ensure their right to a properly counted vote, and a fair and secure election." Asserting violations of the Texas Constitution and the Texas Election Code, appellees challenged the Secretary's certification of the paperless computerized voting machine and system currently used in Travis County, the Hart Intercivic eSlate ("eSlate").³ Appellees' primary complaint is that the eSlate does not provide a voter-verified paper audit trail independent of its software. Appellees seek declaratory relief that the Secretary was "violating, and continuing to violate, Plaintiffs' fundamental voting rights, guaranteed under the Texas Constitution and the Texas Election Code," and injunctive relief to enjoin the Secretary from permitting the use of "paperless election systems, without an independent paper ballot mechanism."

In their petition, appellees' pleaded facts include:

7. ... The voting system in question is used in Travis County local elections, and is certified by the Defendant Secretary of State.

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9. Plaintiffs, except for Mr. Van Os, are voters in Travis County, and have participated, and will continue to participate, in Travis County elections. Plaintiffs are required to use a paperless computerized voting machine during Travis County elections, certified by Defendant Secretary.

10. Plaintiff Van Os is a candidate for state office, specifically the position of Attorney General. He seeks the votes of people from Travis County, and the outcome of his election may depend on the outcome of voting in Travis County.

11. The election procedure for paperless computerized voting in Travis County requires electors to enter their vote into the computer, using a turn dial system.... After the computer has prompted the elector to vote in each individual election, the elector is then offered the opportunity to view a screen showing a summary of all the votes placed. Once approved by the elector, the voting summary disappears from the screen and is believed to be recorded by the computer software.

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13. Voters must rely on the software used to assure their votes are recorded properly. Once an elector enters his or her vote, there is no way to independently determine if the vote cast has been recorded correctly. The voter is forced to hope the software that records the votes is created and maintained, without mistake or fraud, to protect the integrity of the ballot.... There is no independent verification mechanism required by the Secretary....

14. The software used to record and tabulate the votes cast has been created by a private entity, Hart Intercivic, and certified for use by the Defendant Secretary. However, the actual procedures of this private company are not governed by Texas law. Thus, the voters and candidates must rely on a private company completely unsupervised by Texas officials to ensure votes are properly counted and the voting system has been properly constructed, maintained, and secured.

15. The Secretary has no way to determine if the software has been properly designed, is functioning properly while in use, or has been protected from tampering, fraudulent or otherwise. All checks on the proper functioning of the software are created, and thus ultimately controlled by Hart Intercivic.

16. The coding created by Hart Intercivic is not open to public scrutiny. Travis County is only provided procedures by Hart Intercivic to conduct checks on the machine's accuracy....

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19. .... The paperless computerized voting systems only allow for a retabulation of the votes cast and recorded. There is no independent procedure to assure the votes recorded by the software equals the votes intended by the electors.

20. The lack of proper re-count procedure for computerized voting machines creates a disparity in the re-count methodology. Voters not required to use the paperless computerized voting machines (absentee, military, etc.) are granted the right to a hand re-count of votes. This fails to provide the voters and candidates with an equal way of accurately counting the vote....

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28. Countless reports of malfunctions and security issues have been reported with paperless computerized voting systems. Problems with Hart Intercivic's E-slate machine, currently used in Travis County, have been reported in Texas and nationwide. Problems with other computer-based paperless machines certified in Texas have been, and are continuing to be reported, nationwide.

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30. Only with a paper verified system can a proper audit be performed on an election run by computerized voting machines. There can never be a paperless system that does not require sole reliance on the machine itself, and prevent independent verification.

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37. The paperless computerized voting machine only has the ability to retabulate the votes already recorded. There is no independent verification the votes recorded reflect the intention of the voters. Even though the machines have the capability of producing a "ballot image report," this report is insufficient to comply with the verified re-count granted by the Legislature. The report simply prints out its own recording of the votes cast.... There is no way to independently verify the accuracy of the machine in reprinting the recorded votes.

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39. The computerized voting machine does not provide electors with a paper ballot of their vote. A ballot would provide confidence in the elector that the vote recorded was the ballot he or she intended to cast, and also provide a way for the vote to be independently verified in the case of a re-count. Without providing evidence on paper of the vote cast, there is no way to comply with the Election Code's requirement of "verification of the vote" during a re-count.

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51. No verifiable manual re-count can be conducted using the computerized voting machines in place today....

The Secretary in October 2007 filed a motion for summary judgment pursuant to 166a(c) and (i) of the rules of civil procedure and a plea to the jurisdiction, asserting that the individual appellees and the NAACP of Austin do not have standing to bring their claims and that sovereign immunity barred the suit. Appellees responded, filing evidence including affidavits from Linder, Santana, Van Os, and Dan Wallach, who averred as an expert concerning the eSlate. The Secretary filed a reply with objections to portions of the affidavits of Linder, Van Os, and Wallach, but did not file any controverting evidence. After a hearing, the trial court sustained the Secretary's objections in part, but overruled the Secretary's objections to the content of Wallach's affidavit. The trial court denied the plea to the jurisdiction and the motion for summary judgment. This interlocutory appeal from the denial of the plea to the jurisdiction followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2008).

ANALYSIS

In two issues, the Secretary contends that the trial court erred in denying her plea to the jurisdiction because appellees lack standing and their suit is barred by sovereign immunity. The Secretary did not offer controverting evidence and does not dispute appellees' evidence. Her contention is that the trial court does not have subject matter jurisdiction because appellees failed to allege or demonstrate standing to bring their claims or a waiver of sovereign immunity.

Standard of Review

We review the trial court's ruling on a plea to the jurisdiction de novo. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). A plea to the jurisdiction is a dilatory plea that contests the trial court's authority to determine the subject matter of the cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plaintiff's claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. Id. The purpose of a dilatory plea is not to force a plaintiff to preview his case on the merits but to establish a reason why the merits of the plaintiff's claims should never be reached. Id.

When a plea to the jurisdiction challenges the pleadings, we must determine if the pleader has alleged sufficient facts to affirmatively demonstrate the trial court's jurisdiction to hear the cause. See Miranda, 133 S.W.3d at 226-27 (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). To make this determination, we look to the pleader's intent, construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings as true. Id. A plaintiff has a right to cure pleadings defects if the plaintiff has...