Vota v. Ogg

105 F.4th 313

MI FAMILIA VOTA; Marla Lopez;

Marlon Lopez; Paul Rutledge, Plaintiffs—Appellees, v. Kim OGG, Defendant—Appellant,

OCA-Greater Houston; League of Women Voters of Texas;

REVUP-Texas, Plaintiffs—Appellees, v. Jose A. Esparza, In His Official Capacity as

Texas Secretary of State (Acting); et al., Defendants,Kim Ogg, Appellant, v. LULAC Texas; Vote Latino; Texas Alliance for Retired Americans;

Texas AFT, Plaintiffs—Appellees, v. Jose Esparza; et al., Defendant,Kim Ogg, Appellant,

Delta Sigma Theta Sorority, Incorporated;

Houston Area Urban League; the Arc of Texas;

Jeffrey Lamar Clemmons, Plaintiffs—Appellees, v. Gregory Wayne Abbott, In His Official Capacity as

the Governor of Texas; et al., Defendants,

Kim Ogg, Appellant,

Mi Familia Vota; Marla Lopez; Marlon Lopez;

Paul Rutledge, Plaintiffs—Appellees, v. Greg Abbott, In His Official Capacity

as Governor of Texas; et al., Defendants,

Kim Ogg, Appellant.

No. 22-50732

United States Court of Appeals, Fifth Circuit

FILED June 20, 2024

Appeal from the United States District Court for the Western District of Texas, USDC Nos. 1:21-CV-780, 1:21-CV-786, 5:21-CV-844, 5:21-CV-848, 5:21-CV-920

Courtney Marie Hostetler, John C. Bonifaz, Free Speech For People, Amherst, MA, Eitan Berkowitz, ArentFox Schiff, L.L.P., San Francisco, CA, Ben Clements, Free Speech For People, Newton, MA, for Plaintiffs—Appellees Mi Familia Vota, Marla Lopez, Marlon Lopez, Paul Rutledge.

Zachary Dolling, Texas Civil Rights Project, Austin, TX, Jessica Ring Amunson, Jenner & Block, L.L.P., Washington, DC, Thomas Paul Buser-Clancy, Ashley Alcantara Harris, Savannah Kumar, American Civil Liberties Union of Texas, Houston, TX, Adriel I. Cepeda Derieux, American Civil Liberties Union Foundation, Washington, DC, Peter Thomas Hofer, Disability Rights Texas, Central Texas Regional Office, Austin, TX, Jerry Vattamala, Director, Asian American Legal Defense & Educational Fund, New York, NY, for Plaintiffs—Appellees OCA-Greater Houston, League of Women Voters of Texas, REVUP-Texas.

Uzoma Nkem Nkwonta, Christopher D. Dodge (argued), Elena Alejandra Rodriguez Armenta, Elias Law Group, L.L.P., Washington, DC, Noah Baron, Asian Americans Advancing Justice - AAJC, Washington, DC, for Plaintiffs—Appellees LULAC Texas, Vote Latino, Texas Alliance for Retired Americans, Texas AFT.

Kenneth Eugene Broughton, Jr., Reed Smith, L.L.P., Dallas, TX, Mohammed Amir Badat, Victor Genecin, Esq., Kathryn C. Sadasivan, Samuel Spital, NAACP Legal Defense & Educational Fund, Incorporated, New York, NY, Eitan Berkowitz, Derek Ha, ArentFox Schiff, L.L.P., San Francisco, CA, Jennifer A. Holmes, NAACP Legal Defense & Educational Fund, Incorporated, Washington, DC, J. Michael Showalter, ArentFox Schiff, L.L.P., Chicago, IL, for Plaintiffs—Appellees Delta Sigma Theta Sorority, Incorporated, Houston Area Urban League, Arc of Texas, Jeffrey Lamar Clemmons.

Eric J. R. Nichols (argued), Cory Liu, D. Todd Smith, Karson Thompson, Butler Snow, L.L.P., Austin, TX, for Defendant—Appellant.

Before Richman, Chief Judge, and Southwick, and Oldham, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

This is an interlocutory appeal from the district court's denial of a motion to dismiss. The Plaintiffs are civil rights groups, voters, and an election official. They seek to enjoin recent amendments to Texas's election code, alleging that those amendments violate the United States Constitution and several federal statutes. The Defendant is the District Attorney for Harris County who is sued in her official capacity. The district court denied the District Attorney's motion to dismiss, holding that she is not immune from the Plaintiffs' constitutional claims. The district court also found the Plaintiffs have standing to bring their claims against the District Attorney. We hold that we have jurisdiction to hear this appeal and that the district court should have dismissed the Plaintiffs' constitutional claims as barred by sovereign immunity. We do not reach the issue of standing. We REVERSE in part, VACATE in part, and REMAND for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On September 7, 2021, Texas Governor Greg Abbott signed into law the Election Protection and Integrity Act of 2021. The enactment is generally known by its Texas Senate bill number, "S.B. 1." See Election Integrity Protection Act of 2021, S.B. 1, 87th Leg., 2d Spec. Sess. (Tex. 2021). S.B. 1 modified various provisions of the Texas Election Code concerning voting, early voting, voting by mail, and voter assistance. See id. S.B. 1 also modified some existing elections-related criminal statutes and created several new ones. See, e.g., TEX. ELEC. CODE § 33.051(g) (making it an offense for an election officer intentionally or knowingly to refuse to accept a poll watcher as required by law); § 276.015(b)-(d) (criminalizing "vote harvesting").

Several advocacy groups and others filed lawsuits challenging S.B. 1's constitutionality. They alleged certain provisions violate federal statutes including the Voting Rights Act of 1965 ("VRA"), the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act. These suits were consolidated on September 30, 2021. The advocacy groups alleged S.B. 1's restrictions would impact their ability to advance their respective missions and their members' ability to vote and to assist others with voting.

The complaints originally named various state and county officials as defendants, including Texas Attorney General Ken Paxton. Section 273.021(a) of the Texas Election Code authorized the Attorney General to enforce election-related criminal statutes, including those established by S.B.1.

On December 15, 2021, the Texas Court of Criminal Appeals held that Section 273.021 violated the separation of powers clause of the Texas constitution and was therefore unconstitutional. State v. Stephens, 663 S.W.3d 45, 51-54 (Tex. Crim. App. 2021) (citing TEX. CONST. art. II, § 1). The court concluded the Texas constitution "grants . . . authority to county and district attorneys" to "[r]epresent[ ] the state in a criminal prosecution for election law violations," and described this authority as "the specific duty of county and district attorneys." Id. at 52 (citing Tex. Const. art. V, § 21). It explained that "the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally." Id. at 55.

Three Plaintiffs groups — the LULAC Plaintiffs,¹ MFV Plaintiffs,² and OCA Plaintiffs³ (collectively, "Plaintiffs") — responded to Stephens by amending their complaints to add several district attorneys as defendants, including Kim Ogg, the Harris County District Attorney. The Plaintiffs challenged several S.B. 1 provisions and alleged that Ogg is a proper defendant for their claims under the First, Fourteenth, and Fifteenth Amendments of the United States Constitution, Sections 2 and 208 of the VRA, Title II of the ADA, and Section 504 of the Rehabilitation Act.

Ogg offered the Plaintiffs a "stipulation" or "non-participation agreement" under which she would refrain from enforcing the challenged criminal provisions "until such time as a final, non-appealable decision has been issued in this matter." The Plaintiffs rejected the stipulation, arguing on appeal that the "limited offer did not bind Ogg to any final ruling on the merits; require her to produce discovery in the case; or impact her statutory duty to aid the Attorney General when called upon to help investigate election infractions." The Plaintiffs also complain the stipulation did not "rule out her granting permission to Attorney General Paxton to bring prosecutions under S.B. 1 within her jurisdiction."

Ogg moved to dismiss all claims brought against her under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion included assertions of sovereign immunity and a lack of standing. The district court granted the motion in part and denied it in part.⁴ The court allowed the Plaintiffs to proceed against Ogg with challenges to the criminal provisions of S.B. 1 but dismissed claims that sought to challenge election code provisions that impose only civil penalties.⁵ The court held sovereign immunity did not bar the Plaintiffs' claims under the exception carved out in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The district court likewise held the Plaintiffs had standing to assert their claims against Ogg.

Ogg filed a notice of appeal. She also moved to stay discovery and further proceedings against her. The district court denied the motion to stay. Ogg then sought a stay in this court. In an unpublished order, a panel of this court denied Ogg's motion on October 7, 2022. The panel held that Ogg failed to justify a stay because she had "no likelihood of succeeding on the merits" on her sovereign immunity defense to the Plaintiffs' VRA claims "because the VRA explicitly abrogated sovereign immunity." The panel further "decline[d] Ogg's invitation to prematurely review [her] pleading and standing arguments at the motions stage of an interlocutory appeal concerning a wholly separate sovereign immunity issue."

DISCUSSION

There are three issues presented in this interlocutory appeal: (1) whether we have jurisdiction under the collateral order doctrine to review the district court's denial of sovereign immunity as it relates to some, but not all, of the Plaintiffs' claims; (2) whether the district court erred in denying Ogg's motion to dismiss the Plaintiffs' constitutional claims based on sovereign immunity and the Eleventh Amendment; and (3) whether the Plaintiffs have standing to assert their statutory claims. Because of our resolution of the first two issues, we need not reach the third.

We will start our analysis with examining our jurisdiction over the appeal. Because we find there is jurisdiction, we then apply de novo review to the district court's dismissal under Rule 12(b)(1) for a lack of jurisdiction in that court. Lane v. Halliburton, ...