Ray v. State of Texas , 261 F. App'x 716 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    January 9, 2008
    No. 06-41573                   Charles R. Fulbruge III
    Clerk
    WILLIE RAY; JAMILLAH JOHNSON; GLORIA MEEKS; REBECCA
    MINNEWEATHER; PARTHENIA MCDONALD; WALTER HINOJOSA;
    TEXAS DEMOCRATIC PARTY
    Plaintiffs-Appellees
    v.
    GREG ABBOTT, Attorney General of the State of Texas; PHIL WILSON,
    Secretary of State for the State of Texas
    Defendants-Appellants
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 2:06-CV-385
    Before KING, BARKSDALE, and DENNIS, Circuit Judges.
    PER CURIAM:*
    At issue is a preliminary injunction against enforcement of § 86.006(f) and
    (h) of the Texas Election Code, concerning the return of early-voting-by-mail
    ballots. VACATED and REMANDED.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 06-41573
    I.
    In September 2006, persons associated with the Democratic Party and the
    Texas Democratic Party filed this action against the State of Texas and its
    Attorney General and Secretary of State, challenging several provisions of the
    Texas Election Code: §§ 64.036(a)(4), 84.004, 86.0051, and 86.006, as amended
    in 2003. These provisions establish several requirements for early voting-by-
    mail. Plaintiffs maintain the purpose and effect of these provisions, and their
    application and enforcement by the State, unduly burden voting, free-speech,
    and associational rights in violation of the First, Fourteenth, and Fifteenth
    Amendments to the United States Constitution, as well as the Voting Rights Act
    (VRA).    Plaintiffs also assert enactment and enforcement of the 2003
    Amendments violate their constitutional rights of equal protection and due
    process of law.
    In October 2006, Plaintiffs moved for a preliminary injunction against
    enforcement of the challenged provisions “in advance of the 2006 election”. The
    State filed joint motions seeking dismissal for lack of subject-matter jurisdiction,
    improper venue, and failure to state a claim.
    A hearing was held on 30 October 2006, during which the scope of
    requested injunctive relief was narrowed by Plaintiffs to limit enforcement only
    of § 86.006 against persons who mail the ballot of another. Section 86.006
    regulates the method for returning early-voting ballots and criminalizes, with
    exceptions, the “knowing[] possess[ion of] an official ballot or official carrier
    envelope provided . . . to another”. TEX. ELEC. CODE ANN. § 86.006(f).
    The following day, the court preliminarily enjoined enforcement of §§
    86.006(f) and (h) for “circumstances in which a person, other than the voter, has
    merely possessed the official ballot or official carrier envelope and such
    possession is with the actual consent of the voter”.         The State appealed,
    2
    No. 06-41573
    simultaneously moving to stay the injunction pending, and requesting expedited
    consideration of, the appeal.
    On 3 November 2006, our court stayed the injunction, but refused to
    expedite. Plaintiffs’ request to the Supreme Court to vacate the stay was denied
    the next day.
    Section 86.006 was amended in May 2007, after the parties’ opening briefs
    were filed. Although the State briefed the amendment in its reply, Plaintiffs did
    not seek leave to file a sur-reply regarding this development. For the first time
    at oral argument, in its rebuttal, the State proposed modifying the mail-in ballot
    and carrier envelope form. Accordingly, we required supplemental briefing on
    that issue. The State, both at oral argument and in its letter brief, asserted that
    the modified forms correct any deficiencies perceived by the district court.
    Plaintiffs, in their letter brief, contended that the 2007 amendment and the
    proposed modified forms do not constitute a sufficient constitutional remedy.
    II.
    The parties’ delay in proceeding to trial is regrettable. Neither the appeal
    from the preliminary injunction, nor our order staying it, stayed proceedings in
    district court. In sum, this litigation has been at a standstill. We are advised,
    however, that a status conference has been scheduled for early 2008.
    In any event, the parties have brought to light new evidence not in the
    record on appeal and, therefore, not before the district court when it entered the
    injunction. In the light of the recent amendment to § 86.006, proposed changes
    to the forms, assurances by the State that the revised forms cure any
    constitutional problems, the State’s advising it will submit the changes to the
    ballot materials for preclearance under the VRA, and Plaintiffs’ contentions to
    the contrary, the district court should be allowed to reconsider its ruling.1
    1
    The State also challenges whether Plaintiffs have standing to seek relief under 
    42 U.S.C. § 1971
     (prohibiting denial of voting rights by state agents based on errors or omissions
    3
    No. 06-41573
    III.
    For the foregoing reasons, the preliminary injunction is VACATED, and
    this matter is REMANDED to district court for further proceedings. In the light
    of the November 2008 elections, we are confident this action will be resolved well
    in advance of them.
    VACATED and REMANDED.
    immaterial to voter qualification). In granting the preliminary injunction, the district court
    ruled purely on constitutional grounds, making our review of the § 1971 issue premature.
    Along that same line, the State challenges whether the district court should have dismissed
    certain plaintiffs under the doctrine of Heck v. Humphrey, 
    512 U.S. 477
     (1994) (requiring
    dismissal of 
    42 U.S.C. § 1983
     complaint when, if successful, would necessarily imply the
    invalidity of a plaintiff's conviction). Because this contention goes solely to the issue of venue,
    it is not inextricably intertwined with the merits of the district court's ruling. Therefore, a
    review of that issue is unnecessary to ensure meaningful review of the injunction. Swint v.
    Chambers County Comm'n, 
    514 U.S. 35
    , 50-51 (1995).
    4
    

Document Info

Docket Number: 06-41573

Citation Numbers: 261 F. App'x 716

Judges: Barksdale, Dennis, King, Per Curiam

Filed Date: 1/9/2008

Precedential Status: Non-Precedential

Modified Date: 8/2/2023