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Longoria v. Paxton

The Brennan Center and co-counsel filed a lawsuit in federal court challenging a provision of Texas’s new omnibus voter suppression law that makes it a crime for public officials and election officials to encourage eligible voters to apply to vote by mail.

Last Updated: July 5, 2022
Published: December 10, 2021

Voting in Texas has never been easy. Even before the Texas Legis­lature passed S.B. 1, Texas was among the states that make it hard­est for voters to register and vote, with some of the most oner­ous voting restric­tions in the coun­try.

But on August 31, the Texas legis­lature made it even harder to vote by passing S.B. 1, an omni­bus voter suppres­sion bill. S.B. 1’s “anti-soli­cit­a­tion” provi­sion makes it a state jail felony for public offi­cials and elec­tion offi­cials to soli­cit mail ballot applic­a­tions from voters who are eligible or may be eligible to vote by mail. It also makes elec­tion offi­cials liable for civil penal­ties for any viol­a­tion of the elec­tion code, includ­ing the anti-soli­cit­a­tion provi­sion. 

On Decem­ber 10, the Bren­nan Center and the Harris County Attor­ney’s Office filed a complaint in the U.S. District Court for the West­ern District of Texas against Texas Attor­ney General Ken Paxton, chal­len­ging S.B. 1’s anti-soli­cit­a­tion provi­sion under the U.S. Consti­tu­tion. For more inform­a­tion about the Bren­nan Center’s lawsuit chal­len­ging other provi­sions of S.B. 1, LUPE v. Abbott, click here.

We repres­ent Harris County Elec­tions Admin­is­trator Isabel Longoria and Cathy Morgan, a volun­teer deputy regis­trar. Plaintiffs assert that S.B. 1’s anti-soli­cit­a­tion provi­sion viol­ates the First and Four­teenth Amend­ments because it crim­in­al­izes consti­tu­tion­ally protec­ted speech.

Plaintiffs are also repres­en­ted by Weil, Gotshal & Manges LLP. Longoria is also repres­en­ted by the Harris County Attor­ney’s Office.

On Decem­ber 27, plaintiffs filed an amended complaint naming the local district attor­neys of Harris County, Willi­am­son County, and Travis County, as well as the State Attor­ney General, as defend­ants in the lawsuit. And on Decem­ber 28, Plaintiffs filed for a prelim­in­ary injun­c­­tion, request­ing the court to enjoin S.B. 1’s anti-soli­­cit­a­­tion provi­­sion no later than Febru­ary 14, 2022. Plaintiffs sought this quick relief to ensure that Texas voters can meet the dead­line of Febru­ary 18, 2022, to request a mail ballot applic­a­­tion for the March 1, 2022 primary elec­­tion. Follow­ing a hear­ing on Febru­ary 11, 2022, the Court gran­ted plaintiffs’ motion for a prelim­in­ary injunc­tion, barring the defend­ants from enfor­cing the anti-soli­cit­a­tion provi­sion against them during the lawsuit.

The Attor­ney General and Willi­am­son County district attor­ney appealed portions of the prelim­in­ary injunc­tion to the Fifth Circuit Court of Appeals. Oral argu­ment took place on March 8, 2022. The Fifth Circuit tempor­ar­ily stayed the appealed portions of the prelim­in­ary injunc­tion during the appeal, but the portions of the prelim­in­ary injunc­tion protect­ing Longoria from crim­inal prosec­u­tion and Morgan from crim­inal prosec­u­tion in Travis County remained in effect.    

On March 21, 2022, the Fifth Circuit asked the Texas Supreme Court to inter­pret the mean­ing of S.B. 1’s anti-soli­cit­a­tion provi­sion as a matter of Texas law. Oral argu­ment occurred before the Texas Supreme Court on May 11, 2022. The Supreme Court determ­ined on June 10, 2022, that Morgan was not a “public offi­cial” under S.B. 1 but declined to say whether other volun­teer deputy regis­trars are public offi­cials under the stat­ute. Addi­tion­ally, the Court held that the Attor­ney General could not enforce the civil penal­ties provi­sion in S.B. 1 against Longoria but did not rule on whether the Attor­ney General has any author­ity to enforce that provi­sion.

Follow­ing the Texas Supreme Court’s ruling, the Fifth Circuit vacated the chal­lenged portions of the injunc­tion and returned the case to the District Court with instruc­tions to dismiss. As to Morgan, the Court found that she lacked stand­ing to sue the Willi­am­son County district attor­ney because she is not a public offi­cial and there­fore not subject to prosec­u­tion under the anti-soli­cit­a­tion provi­sion. The Court also held that Longori­a’s claims against the Attor­ney General were barred by sover­eign immunity because the Attor­ney General could not enforce the civil penal­ties provi­sion against her. On June 28, 2022, the District Court gran­ted the Attor­ney Gener­al’s and Willi­am­son County district attor­ney’s motions to dismiss as to the appealed portions of the injunc­tion. On July 1, 2022, plaintiffs dismissed their remain­ing claims.

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