Texas Officials Say They’re Immune From ‘Election Integrity’ Row

Texas Secretary of State Jane Nelson and Provisional Attorney General of Texas John Scott have immunity from civil rights claims challenging the state Election Integrity Act because they lack a sufficient connection to enforcement of the law, their counsel told the Fifth Circuit Wednesday.

The A.G. lacks the power to pursue criminal or civil penalties under the act, and can only investigate or be deputized to assist local prosecutors in pursuing election code violations, Assistant Solicitor General William F. Cole said in oral argument before the US Court of Appeals for the Fifth Circuit.

And the enforcement duties of the secretary under the act—prescribing forms, promulgating rules, and reporting violations—fall short as well, Cole said.

Promulgating rules doesn’t constitute enforcement, he said. And while the secretary is charged with creating forms such as vote-by-mail applications and voter-assistance forms, “the local clerks are charged with rejecting the forms,” Cole said. Nor does reporting violations of law constitute enforcement because “referral to another official doesn’t mean they’re going to prosecute,” he said.

The plaintiffs also lack standing to sue because they can’t establish an injury traceable to Nelson or Scott, Cole told the court.

Counsel for the plaintiffs, Rebecca L. Martin with Fried, Frank, Harrris, Shriver & Jacobson LLP responded that traceability “is satisfied by the secretary’s duty to prescribe forms.” And the A.G. can and will enforce provisions of the law, she said.

And the A.G.'s website states that “it is a key priority to investigate voter fraud,” Martin said. “That is more than sufficient to address Ex Parte Young,” she said.

Ex Parte Young provides an exception to sovereign immunity to enjoin ongoing violations of federal law by state officials with a significant connection to enforcement of the challenged act.

The court asked Martin how far the litigation could reach. “Could we sue the Texas legislature” or interest groups who proposed the idea?

“Fortunately, we don’t need to decide that today. At most we are one or two steps removed from the plaintiffs’ injuries,” Martin said.

Eric J.R. Nichols with Butler Snow LLP, counsel for Harris County District Attorney Kim Ogg in five consolidated suits, said she is also immune because she has taken no action to enforce, or threaten to enforce any of the criminal provisions of the act. Having failed to establish any injury traceable to Ogg, the defendants also lack standing to pursue the claims, Nichols said.

“It’s not enough to have the duty to enforce,” Nichols said. Plaintiffs must also “show a demonstrated willingness to enforce the statute,” he said.

Arguing on behalf of LULAC Texas, OCA-Greater Houston, and Mi Familia Vota, Christopher D. Dodge with Elias Group LLP said it’s “reasonable to assume when the legislature passes a law that a prosecutor will fulfill that duty.”

Judge Andrew S. Oldham asked Dodge why Ogg’s offer to stipulate that she wouldn’t enforce the challenged provisions until the case was resolved isn’t “a complete answer.” Dodge said Ogg could “change her mind and prosecute.”

The defendants seek to overturn the ruling of Judge Xavier Rodriguez of the US District Court for the Western District of Texas denying the defendants’ immunity and standing arguments on their claims under 42 U.S. Code §1983.

Voting Fraud, Discrimination

In signing the act into law in September 2021, Governor Greg Abbott said it will make “it easier to vote and harder to cheat.”

But the groups challenging the law say it discriminates against minority voters, gives “partisan poll watchers ‘free movement’ to intimidate and harass voters and poll workers,” imposes restrictions that will suppress voting, and criminalizes work performed “by public employees, private organizations and individuals to help citizens exercise their constitutional right to vote.”

The panel also included Judges Leslie H. Southwick and Priscilla Richman.

The consolidated plaintiffs in the Ogg case are Mi Familia Vota, OCA-Greater Houston, League of Women Voters of Texas, REVUP-Texas, LULAC Texas, Voto Latino, Texas AFT, Delta Sigma Theta Sorority Inc., Houston Area Urban League, Arc of Texas, and several individuals.

The consolidated plaintiffs in the Nelson case are La Unión del Pueblo Entero; Friendship-West Baptist Church; Anti-Defamation League Austin, Southwest, and Texoma; Mi Familia Vota; Delta Sigma Theta Sorority Inc.; Houston Area Urban League; OCA-Greater Houston; League of Women Voters of Texas; REVUP-Texas; Workers Defense Action; Southwest Voter Registration Education Project; Texas Impact; Mexican American Bar Association of Texas; and Texas Hispanics Organized for Political Education.

The cases are Mi Familia Vota v. Ogg, 5th Cir., No. 22-50732, oral argument 7/12/23; La Union del Pueblo v. Nelson, 5th Cir., No. 22-50775, 7/12/23.