However, the three-judge panel otherwise preserved the district court's September order rejecting claims brought by a coalition of voters and activist groups, finding that the court doesn't have the authority to require Texas Gov. Greg Abbott and Texas Secretary of State Ruth Hughs to issue an executive order or directive. And that's effectively the relief that the plaintiffs are after, the Fifth Circuit held.
The coalition, led by Latino voting rights group Mi Familia Vota, had also taken issue with a prohibition of curb-side voting for anyone without a physical disability and a requirement that, in some counties, voters use electronic voting machines that may not be cleaned properly between uses. They argued that the measures unfairly burdened Latino, Black and Indigenous voters by forcing them to choose between their health and the right to vote. COVID-19, which has killed more than 16,500 Texans, has been found to disproportionately affect minority communities.
U.S. District Judge Jason K. Pulliam had found that the coalition's challenges were political questions on which the court could not rule.
The Fifth Circuit on Wednesday held that much of the suit was properly dismissed, finding that the relief sought by the coalition "by and large would up-end the process." Texas started sending out mail-in ballots and early voting began Tuesday.
"In large measure, it would be a futile act" to remand the case "because it would be inappropriate for the district court to grant much of the requested relief with the election ongoing," the three-judge panel ruled.
The panel noted that a big issue with the other claims was that the governor and secretary of state lack the ability to enforce the executive order at issue because enforcement actions would be handled by local authorities.
"Although a court can enjoin state officials from enforcing statutes, such an injunction must be directed to those who have the authority to enforce those statutes," the Fifth Circuit said. "In the present case, that would be county or other local officials."
However, the panel said it saw "a possible exception" with regard to the mask mandate exemption for voters and poll workers. The district court could, in fact, do away with that provision, it said.
"It is at least conceivable that such a remedy would not materially or substantially affect the ongoing election, but that would be a matter for the district court to determine," the Fifth Circuit said.
And the coalition's claim under the Voting Rights Act does not present a political question and is not barred by sovereign immunity, the panel added.
Mi Familia, the Texas State Conference of the NAACP and voter Guadalupe Torres filed suit in July, alleging various violations of the First, 14th and 15th amendments that included race discrimination and undue burden on the right to vote.
Judge Pulliam granted the Texas officials' motions to dismiss on Sept. 7 and the dispute landed in the Fifth Circuit a few days later, according to the case docket.
During a hearing last week, the Fifth Circuit asked whether it was too close to Election Day to revive the challenge, with U.S. Chief Circuit Judge Priscilla R. Owen cautioning that U.S. Supreme Court precedent warns against changing the rules so late.
Meanwhile, the coalition argued that while some of the relief the coalition sought when the lawsuit was filed may not be available anymore, that doesn't bar their claims from being heard.
"How would they print paper ballots?" Judge Owen asked at the hearing
"There is time to do that," Ben Clements of the nonprofit Free Speech For People, representing the voter coalition, responded. He added that recently decided cases in other jurisdictions have required wider access to paper ballots.
Mi Familia representatives and counsel for the Texas officials didn't immediately return requests for comment late Wednesday.
U.S. Chief Circuit Judge Priscilla R. Owen and Circuit Judges W. Eugene Davis and Leslie H. Southwick sat on the panel for this case.
Mi Familia is represented by Sean Lyons and Clem Lyons of Lyons & Lyons PC, Courtney Hostetler, John Bonifaz, Ben Clements and Ronald Fein of Free Speech For People, and Kelly M. Dermody, Yaman Salahi, Michael K. Sheen, Evan Ballan and Avery S. Halfon of Lieff Cabraser Heimann & Bernstein LLP.
Abbott and Hughs are represented by William T. Thompson of Texas' Office of the Attorney General.
The case is Mi Familia Vota et al. v. Greg Abbott et al., case number 20-50793, in the U.S. Court of Appeals for the Fifth Circuit.
--Additional reporting by Katie Buehler. Editing by Emily Kokoll.
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