Miller v. Hughs

471 F.Supp.3d 768

Rachel MILLER; Texas Democratic Party; DNC Services Corp., d/b/a Democratic National Committee; DSCC; and DCCC, Plaintiffs,

v.Ruth HUGHS, in Her Official Capacity as the Texas Secretary of State, Defendant.

CAUSE NO. 1:19-CV-1071-LY

United States District Court, W.D. Texas, Austin Division.

Signed July 10, 2020

Chad W. Dunn, Brazil & Dunn, Austin, TX, Abha Khanna, Pro Hac Vice, Perkins Cole LLP, Seattle, WA, Elisabeth C. Frost, John M. Geise, Marc Erik Elias, Perkins Coie LLP, Washington, DC, Gillian C. Kuhlmann, Pro Hac Vice, Perkins Coie LLP, Los Angeles, CA, Skyler M. Howton, Perkins Coie LLP, Dallas, TX, for Plaintiffs Rachel Miller, DNC Services Corp., DSCC, DCCC.

Chad W. Dunn, Brazil & Dunn, Robert Leslie Meyerhoff, Pro Hac Vice, Austin, TX, Abha Khanna, Pro Hac Vice, Perkins Cole LLP, Seattle, WA, Elisabeth C. Frost, John M. Geise, Marc Erik Elias, Perkins Coie LLP, Washington, DC, Gillian C. Kuhlmann, Pro Hac Vice, Perkins Coie LLP, Los Angeles, CA, Skyler M. Howton, Perkins Coie LLP, Dallas, TX, for Plaintiff Texas Democratic Party.

Dominique Gelene Stafford, Todd Lawrence Disher, Eric A. Hudson, Michael Abrams, Office of the Attorney General of Texas, Patrick K. Sweeten, Matthew Hamilton Frederick, Office of the Attorney General Office of the Solicitor General, William Thomas Thompson, Office of the Attorney General, Austin, TX, for Defendant.

ORDER ON MOTION TO DISMISS

LEE YEAKEL, UNITED STATES DISTRICT JUDGE

Before the court are The Texas Secretary of State's Motion to Dismiss filed December 12, 2019 (Doc. #33); Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss filed December 31, 2019 (Doc. #36); Plaintiffs' Notice of Supplemental Authority in Support of Response in Opposition to Secretary's Motion to Dismiss filed January 29, 2020 (Doc. #41); The Texas Secretary of State's Response to Plaintiffs' Notice of Supplemental Authority filed February 4, 2020 (Doc. #42); and Plaintiffs' [Second] Notice of Supplemental Authority in Support of Response in Opposition to Defendant's Motion to Dismiss filed March 18, 2020 (Doc. #52). The court conducted a hearing by telephone on the motion on March 24, 2020, at which the court entertained argument from counsel for the parties.

Following the hearing, the parties filed the following supplemental briefing: Plaintiffs' Supplemental Brief Regarding Nelson v. Warner , No. 3:19-0898, 446 F.Supp.3d 119, (S.D. W. Va. Mar. 17, 2020), and Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, et al. , ––– U.S. ––––, 140 S.Ct. 1009, 206 L.Ed.2d 356 (2020) filed April 3, 2020 (Doc. #60); The Texas Secretary of State's Supplemental Brief in Support of Her Motion to Dismiss filed April 3, 2020 (Doc. #61); Notice of Supplemental Authority in Support of Motion to Dismiss filed May 4, 2020 (Doc. #63); Plaintiffs' Response to the Secretary's Notice of Supplemental Authority in Support of Motion to Dismiss filed May 6, 2020 (Doc. #68); Plaintiffs' Notice of Supplemental Authority in Support of Their Response in Opposition to Defendants' Motion to Dismiss filed June 17, 2020 (Doc. #69); The Texas Secretary of State's Response to Plaintiffs' Notice of Supplemental Authority filed June 25, 2020 (Doc. #71); The Texas Secretary of State's Notice of Supplemental Authority in Support of Her Motion to Dismiss filed June 26, 2020 (Doc. #72); and Plaintiffs' Response to Notice of Supplemental Authority filed June 29, 2020 (Doc. #74). Having considered the motion, response, reply, arguments of counsel, and supplemental briefing, along with the applicable law, the court will grant the motion to dismiss for the reasons to follow.

I. BACKGROUND

This case involves the constitutionality of a Texas law that governs the order in which candidates appear on the ballot in Texas elections. The Texas Election Code provides instruction on the preparation of all ballots for all elections in Texas. See Tex. Elec. Code Ann. § 52.002. In a general election, ballots are "arranged in vertical columns separated by parallel lines." Id. § 52.065(a). The leftmost column lists the "title of [each] office to be voted on." Id. § 52.065(b). "The name of each political party with a nominee on the ballot shall be printed at the top of the second and as many succeeding columns as necessary." Id. § 52.065(c). Candidate names "appear opposite the office [for which they are running] in the appropriate party column." Id. Spaces for independent and write-in candidates are included to the right of the party columns. Id. § 52.065(c)–(d).

In 1963, the Texas Legislature enacted Senate Bill 61, which requires that candidates be arranged on ballots "in descending order of the number of votes received statewide by each party's candidate for governor in the most recent gubernatorial general election, beginning on the left with the party whose candidate received the highest number of votes." Id. § 52.091 (b) (the "Ballot-Order Statute"). In other words, the Ballot-Order Statute mandates that for every partisan election listed on a general-election ballot in Texas, the candidates who share their political party with the last-elected governor shall be listed first. Because the last-elected Governor of Texas, Greg Abbott, was the Republican Party's candidate for governor, all Republican candidates will be listed first on the 2020 general-election ballot.

Plaintiffs include Rachel Miller, a Texas voter who consistently supports Democratic candidates; the Texas Democratic Party; and three national Democratic committees-DNC Services Corp., d/b/a Democratic National Committee, Democratic Senatorial Campaign Committee, and Democratic Congressional Campaign Committee (collectively, "Plaintiffs"). Plaintiffs challenge the constitutionality of the Ballot-Order Statute, asserting that the statute (1) imposes an undue burden on the right to vote in violation of the First and Fourteenth Amendments of the United States Constitution and (2) violates the Equal Protection Clause of the United States Constitution. Plaintiffs allege that the statute, on its face, treats similarly-situated major political parties differently, to the detriment of candidates who do not share a political-party affiliation with the last-elected governor; while candidates who share a political-party affiliation with the last-elected governor "enjoy systemic, arbitrary, and artificial advantage over their opposing candidate" simply because the statute boosts their electoral prospects for no other reason than a single member of their party out-performed other candidates in a different election, often years before the election in which they continue to maintain this state-mandated advantage. Plaintiffs request that the court render an order (1) declaring that the Ballot-Order Statute is unconstitutional pursuant to the First and Fourteenth Amendments, (2) preliminarily and permanently enjoining Defendant Ruth Hughs, the Texas Secretary of State, from utilizing the Ballot-Order Statute, (3) requiring Hughs to use a ballot-order system that gives similarly-situated major-party candidates an equal opportunity to be listed first on the ballot, and (4) awarding costs, disbursements, and attorney's fees incurred in bringing this action.

Hughs, the Secretary of State of Texas, is named in her official capacity as the State's chief elections officer responsible for the administration and implementation of election laws in Texas. See Tex. Elec. Code Ann. § 31.001(a). Hughs moves to dismiss Plaintiffs' complaint for lack of subject-matter jurisdiction and failure to state a claim. See Fed. R. Civ. P. 12(b)(1), (6). She raises five arguments in favor of dismissal. First, Hughs asserts that Plaintiffs cannot sue the Secretary of State because she does not enforce the Ballot-Order Statute. Second, Hughs argues that Plaintiffs lack standing because the statute does not injure Plaintiffs. Third, Hughs asserts, Plaintiffs' challenge presents a nonjusticiable political question. Fourth, Hughs argues that the statute is constitutional because it does not burden anyone's constitutional rights; and because it furthers the Texas's interests in preventing gamesmanship, avoiding voter confusion, making voting easier, and simplifying administration. Finally, Hughs asserts that Plaintiffs are not entitled to the equitable relief they seek because Texas Democrats enacted the statute and "benefitted" from it for many years.

II. STANDARD OF REVIEW

A party may challenge the court's subject-matter jurisdiction based upon the allegations on the face of the complaint. See Fed. R. Civ. P. 12(b)(1) ; Barrera-Montenegro v. United States , 74 F.3d 657, 659 (5th Cir. 1996). In ruling on a motion to dismiss for lack of subject-matter jurisdiction, "a trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." MDPhysicians & Assoc., Inc. v. State Bd. of Ins. , 957 F.2d 178, 181 (5th Cir. 1992). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed jurisdictional facts. Freeman v. United States , 556 F.3d 326, 334 (5th Cir. 2009).

Plaintiffs must establish the elements of standing before a court exercises jurisdiction. The United States Supreme Court requires strict compliance with this jurisdictional-standing requirement. See Chicago & Grand Trunk R. Co. v. Wellman , 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892) (federal courts may exercise power "only in the last resort, and as a necessity"); Muskrat v. United States , 219 U.S. 346, 356, 31 S.Ct. 250, 55 L.Ed. 246 (1911) ("[F]rom its earliest history this [C]ourt has consistently declined to exercise any powers other than those which are strictly judicial in their nature"). This requirement assures that "there is a real need to exercise the power of...