Case 1:17-cv-01167-SS Document 9 Filed 12/18/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

THE REPUBLICAN PARTY OF TEXAS;
JAMES R. DICKEY, in his official capacity
as Chairman of the Republican Party of
Texas and DEBORAH HOVDA, Civil Action No. 1:17-cv-01167
Plaintiffs,

v.

ROLANDO B. PABLOS, in his official
capacity as Texas Secretary of State,
Defendant.

DEFENDANTS RESPONSE TO PLAINTIFFS MOTION FOR PRELIMINARY AND

PERMANENT INJUNCTIONS AND TEMPORARY RESTRAINING ORDER

TO THE HONORABLE ANDREW AUSTIN, United States Magistrate Judge:

Defendant Rolando B. Pablos, in his official capacity as Texas Secretary of State, files this

response to Plaintiffs Motion for Preliminary and Permanent Injunctions and Temporary

Restraining Order (Mot.), Dkt. No. 3, and respectfully requests that the motion be denied for the

reasons discussed below.1

I. INTRODUCTION AND SUMMARY OF THE ARGUMENT

Section 172.052(a) of the Texas Election Code provides that a candidate for nomination

may not withdraw from the general primary election after the first day after the date of the regular

filing deadline for the general primary election. TEX. ELEC. CODE 172.052(a). On December

14, 2017three days after the December 11 filing deadlineRepresentative Blake Farenthold

executed a request to withdraw his application for a place on the 2018 primary election ballot.

1
Defendant Pablos responds only to Plaintiffs request for a temporary restraining order. Defendant Pablos reserves
all rights to oppose Plaintiffs request for a preliminary injunction at a hearing or at such other time as the Court orders.

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Plaintiffs Complaint (Compl.), Dkt. No. 1 14.2 In accordance with Section 172.052(a), his

name will remain on the ballot despite his attempt to withdraw.

Plaintiffsthe Republican Party of Texas; James R. Dickey, the Chairman of the

Republican Party of Texas; and Deborah Hovda, a registered voter in Texass 27th Congressional

District, Compl. 79contend that Section 172.052(a) is unconstitutional as applied to them.

They seek injunctive relief aimed at Defendant Pablos (referred to as the State) from enforcing

Section 172.052(a) of the Texas Election Code against them under the instant facts. Compl.,

Prayer for Relief 2. They also seek to enjoin Defendant Pablos from certifying and printing

Representative Farentholds name on the 2018 Republican primary election ballot . . . Mot. at 3.

Plaintiffs cannot overcome three hurdles that bar their request for immediate injunctive

relief. First, their motion has been referred from Judge Sparks to Judge Austin for a report and

recommendation. See Dkt. No. 5. But under 28 U.S.C. 636, Judge Sparks must give the parties

14 days to object to the report and recommendation before an injunction can issue. By that time,

as will be discussed in more detail infra, Plaintiffs claims will be essentially mooted.

Second, Plaintiffs have not sued the proper party. Defendant Pablos has no enforcement

authority over Section 172.052(a). Plaintiffs are thus unable to trace their purported injuries to any

action taken by Defendant Pablos, and the Court, in turn, cannot issue an injunction that would

redress Plaintiffs purported injuries. Because Plaintiffs cannot establish standing, the Court should

not issue the injunctive relief they seek. Finally, on the merits, Section 172.052(a) is constitutional.

Indeed, it serves a valuable governmental interest: preventing gamesmanship during the primary

process.

2
Plaintiffs Complaint is not verified, nor is the motion for injunctive relief. Contra FED. R. CIV. P. 65(b)(1)(A)
(requiring specific facts in an affidavit or a verified complaint to support the issuance of a temporary restraining
order without written or oral notice to the adverse party or its attorney).

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For all of these reasons, no injunction nor temporary restraining order should be issued.

II. BACKGROUND

The Constitution grants States broad power to prescribe the Times, Places and Manner

of holding Elections for Senators and Representatives, Art. I, 4, cl.1, which power is matched

by state control over the election process for state offices. Clingman v. Beaver, 544 U.S. 511, 586

(2005).Voting is of the most fundamental significance in our constitutional system. Texas Indep.

Party v. Kirk, 84 F.3d 178, 182 (5th Cir. 1996) (citing Burdick v. Takushi, 504 U.S. 428, 433

(1992)). The right to vote in any manner and the right to associate for political purposes through

the ballot, however, are not absolute. Texas Indep. Party, 84 F.3d at 182. As a practical matter,

states enjoy substantial authority to regulate elections in order to ensure fairness, honesty, and

order. Id. (citing Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).

Texas has exercised that authority by enacting a series of filing-related deadlines to prevent

gamesmanship and ensure election integrity, fairness, and order. To allow sufficient time to print

primary ballots by the January 20, 2018, deadline to mail ballots to military members pursuant to

the Military and Overseas Voter Empowerment Act (MOVE Act), 52 U.S.C. 20302, et seq.,

Texas has set the follow relevant deadlines:

December 11, 2017: Filing deadline for candidates. TEX. ELEC. CODE

172.023(a) (40 days before military ballots mailed out);

December 12, 2017: Deadline for candidates to withdraw name from ballot

TEX. ELEC. CODE 172.052(a) (39 days before military ballots mailed out);

December 18, 2017: Last day of extended filing period, if the incumbent

candidate withdraws from race on December 11 or 12, 2017. TEX. ELEC.

CODE 172.054 (33 days before military ballots mailed out);

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December 19, 2017: Deadline for party chair to submit a candidates

information and notation concerning the candidates status for all

candidates who filed. 1 TEX. ADMIN. CODE 81.112(a)(4) (32 days before

military ballots mailed out);

December 20, 2017: Deadline for party chair to notify county chairs that

the certification has been posted to the Secretary of State. TEX. ELEC. CODE

172.028(b) (31 days before military ballots mailed out);

December 21, 2017: Order of the candidates name on the general primary

election ballot for each county shall be determined by a drawing. Id. at

172.082.

December 21, 2017-January 19, 2018: Local election officials prepare

ballots and engage in various statutory requirements to ensure ballot

integrity, including testing tabulating equipment (see TEX. ELEC. CODE

127.091, et seq.), internal logic and accuracy tests, and public logic and

accuracy (see id. at 129.023).

January 20, 2018: Deadline to mail ballot to overseas military members

pursuant to the MOVE Act.

February 23, 2018: First day of early voting.

March 6, 2018: Primary Election.

Plaintiffs allege that Representative Blake Farenthold, the incumbent representive of

Texass 27th Congressional District of the United States House of Representatives, filed an

application for a place on the 2018 general primary election ballot on or before the regular filing

deadline. Compl. 1112. Multiple other individuals also filed applications for places on the

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ballot for Representative Farentholds seat. Id. 13. The deadline to withdraw from the primary

expired on December 12, 2017. See TEX. ELEC. CODE 172.052(a). Representative Farenthold

sought to formally withdraw his application for a place on the primary on December 15, 2017.

Compl. 25. Because Representrative Farenthold is the incumbent candidate, his withdrawal after

the regular filing deadline would trigger an extended filing period, TEX. ELEC. CODE 172.054.

Such an extended filing period, if triggered now, would exceed the December 19, 2017, deadline

to submit a list of candidates to the Secretary of State and the December 21, 2017, deadline to draw

names on the ballot. It would also impede the already-short period local election officials have to

complete ballots before the January 20, 2018, deadline to mail primary ballots to overseas military

members.

III. ARGUMENT

A. A Temporary Restraining Order Is An Extraordinary Form of Relief.

Temporary restraining orders, preliminary injunctions, and permanent injunctions are

extraordinary forms of relief. Although this observation rises frequently from courts considering

requests for such orders, the enormity of the relief is difficult to overstate. Trinity USA Operating,

LLC v. Barker, 844 F. Supp. 2d 781, 785 (S.D. Miss. 2011) (citation omitted). This is particularly

true when a party seeks an order directing state officials to perform or discontinue certain conduct.

Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir. 1985).

The same factors govern temporary restraining orders and preliminary injunctions. Clark

v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Barker, 844 F. Supp. 2d at 785. A party seeking a

temporary restraining order or a preliminary injunction must show: (1) a substantial likelihood of

success on the merits; (2) a substantial threat that plaintiffs will suffer irreparable injury if the

injunction is not granted; (3) that the threatened injury outweighs any damage that the injunction

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might cause the defendant; and (4) that the injunction will not disserve the public interest. Planned

Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005). An injunction

should not be granted unless the movant has clearly carried the burden of persuasion on all four

requirements. Planned Parenthood Assn of Hidalgo Cnty., Tex., Inc. v. Suehs, 692 F.3d 343, 348

(5th Cir. 2012); Prichard, 812 F.2d at 993. Even then, the decision whether to grant or deny such

relief remains within the discretion of the district court. Miss. Power & Light Co. v. United Gas

Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

B. A Magistrate Judge Cannot Issue the Injunctive Relief Sought.

Under the Federal Magistrates Act, a district judge may designate a magistrate judge to

determine pretrial matters, except for certain motions, including motions for injunctive relief. 28

U.S.C. 636(b)(1)(A). The Fifth Circuit has held that a magistrate lacks power to enter an

injunction even in a case where the district court has jurisdiction. United Steelworkers of America,

AFL-CIO v. Bishop, 598 F.2d 408, 411 (5th Cir. 1979). This principle is unaffected by the parties

consentalthough here, it is noteworthy that Defendant Pablos does not consentbecause a

magistrate cannot act where power to act in such area is restricted by statute. Id. Moreover, 28

U.S.C. 636 provides that [w]ithin fourteen days after being served with a copy, any party may

serve and file written objections to such proposed findings and recommendations as provided by

rules of court. 28 U.S.C. 636; see also FED. R. CIV. P. 72(b)(2) (Within 14 days after being

served with a copy of the recommended disposition, a party may serve and file specific written

objections to the proposed findings and recommendations.).

Thus, at a minimum, no injunctive relief can be issued until at least 14 days after Judge

Austin issues his report and recommendation. However, as discussed above, once the party chairs

notify county chairs that the certification has been posted to the Secretary of State (which must

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take place by December 20), the process to finalize and print ballots will be firmly and irreversibly

underway.

C. Plaintiffs Have Not Shown a Substantial Likelihood of Success on the Merits.

1. Plaintiffs lack standing.

As the party seeking to invoke the Courts jurisdiction, Plaintiffs must show that such

jurisdiction exists. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014). This

requires Plaintiffs to demonstrateamong other thingsthat they have standing. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish Article III standing, Plaintiffs must

satisfy the triad of injury in fact, causation, and redressability. Steel Co. v. Citizens for a Better

Envt, 523 U.S. 83, 10304 (1998). The causation prong requires the plaintiff to present a fairly

traceable connection between the plaintiffs injury and the complained-of-conduct of the

defendant. Id. at 103. The redressability prong demands a showing that it is likely, as opposed

to merely speculative, that the injury will be redressed by a favorable decision. Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 18081 (2000) (citation and

quotation marks omitted). When a plaintiff sues a state official who is without power to take the

complained of action, and whose actions have not caused, or could not cause, any injury to him,

Article III standing is lacking. See Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (plaintiffs

failed to satisfy Article III standing with respect to the Governor, who had no authority to enforce

the allegedly unconstitutional state statute).

Two Fifth Circuit cases illustrate these principles. In Bush v. Viterna, 795 F.2d 1203 (5th

Cir. 1986), a class of prisoners sued the Texas Commission on Jail Standards alleging that county

jail conditions were unconstitutional. Under a theory of supervisory liability, the plaintiffs

claimed that the Commissions failure to discharge its state law-imposed duties caused the

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constitutional violations. Bush, 795 F.2d at 1204. The plaintiffs argued that if the Commission had

followed its state law obligations to enforce the regulatory standards, local officials would have

ensured that conditions in the county jails did not violate the Constitution. Id. The Fifth Circuit

analyzed the Commissions duties under state law to determine which state actor was legally

responsible and determined that it simply [did] not appear to have any state-imposed legal duty

to correct jail violations or noncompliance that it becomes aware of. Id. at 1208. The court found

that the plaintiffs could not state a claim against the Commissioner.

Similarly, in Lightbourn v. County of El Paso, Tex., 118 F.3d 421 (5th Cir. 1997), a class

of mobility-impaired and visually-impaired voters brought a suit against the Secretary of State

claiming that the state voting system did not comport with the Americans with Disabilities Act.

Lightbourn, 118 F.3d at 424. In reversing the district courts finding that the Secretary of State had

a duty to warrant that local election authorities followed the ADA, the Fifth Circuit turned to

provisions of the Election Code to determine whether responsibility for the violations the plaintiffs

alleged could properly be attributed to the Secretary. Id. at 429. The court reviewed the language

in Section 31.005(a) of the Texas Election Codewhich states that the secretary of state may

take appropriate action to protect the voting rights of the citizens of this state from abuse by the

authorities administering the states electoral processesand held that this provision merely

authorize[es] the Secretary of State to take some action, but do[es] not confer on him a legal duty

to take the contemplated action. Id. at 429 (citation omitted).

Although Plaintiffs have asserted claims against Defendant Pablos in their complaint, they

have failed to offer any factual allegations demonstrating how Defendant Pablos has caused them

to suffer an injury-in-fact. Defendant Pablos is the chief election officer of the State, but this title

does not make him a necessary party in every election-related proceeding. Instead, Plaintiffs must

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show how specific actions taken by Defendant Pablos have harmed them, and how an injunction

could redress that harm. Plaintiffs have failed to meet this burden. They have not identified any

independent provision in the Texas Election Code conferring a right, duty, or even the

discretionary authority through which Defendant Pablos might enforce Section 172.052 of the

Election Code. As such, Plaintiffs injuries, if any, are not attributable to Defendant Pablos, and

Plaintiffs lack standing to bring a claim against him. See Sierra Club, Lone Star Chapter v. Cedar

Point Oil Co., 73 F.3d 546, 558 (5th Cir. 1996) (traceability analysis considers whether defendants

conduct contributes to alleged harm).

Finally, the two remedies Plaintiffs have identifiedenjoining Defendant Pablos from

enforcing Section 172.052(a) and from certifying and printing Representative Farentholds name

on the primary ballot, Compl. at 11, Mot. at 3would be wholly ineffective. As discussed above,

Defendant Pablos does not have enforcement authority over Section 172.052(a), nor is he

responsible for preparing or printing the primary ballots, which remains the duty of the local

election officials in Texas. See Okpalobi, 244 F.3d at 425 (injunction against officials without

authority to enforce challenged law was utterly meaningless because officials had no power to

redress the asserted injuries). For these reasons, Plaintiffs lack standing to assert claims against

Defendant Pablos.

2. Plaintiffs have not shown a substantial likelihood of success under the

Anderson-Burdick methodology.

Plaintiffs have not met the heavy burden of proving their entitlement to a temporary

restraining order. In their Complaint, Plaintiffs concede that the Supreme Court has stated that

seventy-days appears to be a reasonable time for processing the documents submitted by

candidates and preparing the ballot. Compl. 39 (quoting Anderson, 460 U.S. at 800). Here, local

election officials must finalize and mail primary ballots by January 20, 2018. Plaintiffs do not

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challenge the December 19, 2017, deadline to submit candidate names to the Secretary of State or

the December 21, 2017, ballot name drawing deadline, which occur approximately one month

before the ballots must be mailed out. Instead, they allege that the December 12, 2017, withdrawal

deadline is not rationally related to a valid government interest and it uncesessary abridges the

Plaintiffs First Amendment freedoms. But, Plaintiffs argument ignores the valid government

interests underlying the withdrawal deadline: it is designed ensure order and prevent

gamesmanship, by allowing sufficient time for an extended five-day filing deadline before the

December 19, 2017, deadline, should an incumbent, like Representative Farenthold, withdraw at

the last minute. These are precisely the type of government interests that are sufficient to justify

the reasonable, non-discriminatory restrictions that section 172.052 applies to all political parties

in Texas.

The Supreme Court recognized the need for a flexible analytical framework in challenges

to election statutes in two landmark cases: Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick

v. Takushi, 504 U.S. 428, 433 (1992). As explained by the Fifth Circuit, under the Anderson-Burdick

methodology:

A court considering a challenge to a state election law must weigh the character
and magnitude of the asserted injury to the rights protected by the First and
Fourteenth Amendments against the precise interests put forward by the State as
justifications for the burden imposed by its rule. The rigorousness of the inquiry
into the propriety of the state election law depends upon the extent to which the
challenged regulation burdens First and Fourteenth Amendment rights. When those
rights are subjected to severe restriction, the regulation must be narrowly tailored
to advance a compelling state interest. But when a state election law imposes only
reasonable, nondiscriminatory restrictions upon the First and Fourteenth
Amendment rights of voters, the State's important regulatory interests are generally
sufficient to justify the restrictions.

Kirk, 84 F.3d at 182-84 (5th Cir. 1996) (internal citations omitted).

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Every court with the Fifth Circuit that has applied the Anderson-Burdick methodology to

the Texas Election Code has determined that the statute is reasonable and non-discriminatory and

advances important regulatory interests. See, e.g., Nader v. Connor, 388 F.3d 137 (5th Cir. 2004)

(affirming the constitutionality of Texass voter signature requirement and the statutory deadline

for independent presidential candidates); Texas Indep Party, 84 F.3d at 18485 (upholding the

signature requirement for independent candidates and finding that forcing independent candidates

to meet petitions requirements did not impose a severe burden); Faas v. Cascos, 225 F. Supp. 3d

604 (S.D. Tex. 2016) (upholding application and petition deadlines, signature requirements for

independent candidates, requirements concerning running mates, formal application requirements,

and write-in candidacy requirements); Meyer v. Texas, Civil Action No. H-10-3860, 2011 WL

1806524 at *3 (S. D. Texas May 11, 2011) (upholding the constitutionality of the statutory

requirements for independent candidates for the House of Representatives). This Court should

follow suit and uphold the constitutionality of the challenged ballot-access requirements in this

case.

As with those cases, the deadlines in question here do not impose a severe burden on

potential candidate or political parties. As Plaintiffs note, the Supreme Court has held that 75 days

is a reasonable time to process documents and prepare the ballots. Anderson, 460 U.S. at 800.

Likewise, courts within this circuit have repeated similar upheld filing deadlines within the Texas

Election Code. Nader v. Connor, 332 F. Supp. 2d 982, (W.D. Tex. 2004) (Yeakel) (upholding May

10th filing deadline for independent president candidate in general election) affd, 388 F.3d 137

(5th Cir. 2004); Faas, 225 F. Supp. 3d at 613 (upholding Election Code provision that set a filing

deadline of 5 p.m. the 78th day before the general election). The deadlines here similarly take place

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approximately 75 days before the primary election. They also take place approximately one month

before ballots first have to be mailed out under the MOVE Act.

Moreover, Plaintiffs differ in significant ways from the Anderson plaintiff. Unlike the

independent party candidate in that case, there is there is no allegation that the Texas provisions at

issue treat Plaintiffs any differently than candidates in other political partiesand thus there is no

evidence that the statutory is discriminatory on its face or as applied. The provisions also do not

deprive Republican voters of their choice of candidates. Rather, as Plaintiffs allege, multiple other

candidates have submit their names for Representative Farentholds place on the ballot. Voters

therefore are not faced with a situation where they are deprives of candidates who share their

particular viewpoint. Finally, unlike Anderson, this does not involve a presidential election, and

therefore Texas has a greater interest in regulating the election. See Anderson, 460 U.S. at 795

(The State has a less important interest in regulating Presidential elections than statewide or local

elections, because the outcome of the former will be largely determined by voters beyond the

States boundaries.)

Since these deadlines are not discriminatory or unreasonable, strict scrutiny should not

apply. Kirk, 84 F.3d at 184 (5th Cir. 1996). The December 12, 2017, withdrawal deadline,

therefore, fits squarely among the class of important regulatory interests that are generally

sufficient to justify the restrictions under a relaxed Anderson-Burdick methodology. Id. Namely,

the provisions at issue promote election integrity and fairness by preventing a situation were an

incumbent candidate attempts to dictate his successor by remaining in the racethereby

discouraging other potential candidates from runningonly to withdraw after the regular filing

deadline. In such a situation, the incumbents withdrawal triggers an automatic five-day extended

filing period. TEX. ELEC. CODE 172.054. Thus, the seven-day period between the withdrawal

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deadline and the deadline to submit names to the Secretary of State serves to allow party chairs to

verify candidates and complete a five-day extended filing period should the incumbent

withdrawalas would be the situation in this case.

These interests are not only rationally related to legitimate state interest, but also are

narrowly tailored. Indeed, the December 19, 2017, deadline to submit names to the Secretary of

State, takes place only 32 days before ballots are mailed out. In this month-timeframe, local

election officials have to draw names, program ballots, and complete required tabulation and logic

and accurate testing. The December 12, 2017, withdrawal deadline is set to ensure that the five-

day extended filing period is timely completed to give local elections officials these full 32 days

to finalize and mail the ballots before January 20, 2018.

Just as the Fifth Circuit has repeatedly done, this Court should uphold the constitutionality

of the Election Codes statutory deadlines under the Anderson-Burdick methodology.

D. The Remaining Factors Do Not Support the Issuance of a Temporary Restraining

Order.

Although it is undisputed that [t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury, Elrod v. Burns, 427 U.S. 347, 373

(1976), this, of course, assumes that Plaintiffs have shown they will lose such freedoms and are

therefore likely to succeed on the merits of a First Amendment claim. They have not done so.

Moreover, because they did not verify their complaint or their motion for injunctive relief, there is

no evidence before the Court that Plaintiffs will suffer irreparable harm apart from argument of

counsel. This is insufficient to support the extraordinary relief that Plaintiffs request. Google, Inc.

v. Hood, 822 F.3d 212, 228 (5th Cir. 2016) ([I]nvocation of the First Amendment cannot

substitute for the presence of an imminent, non-speculative irreparable injury.).

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Finally, the public interest would be best served by even-handed enforcement of Texas

election laws. Section 172.052 serves an important public function, see supra, and it is in the public

interest that it be applied in this case. Planned Parenthood of Greater Tex. Surgical Health Servs.

v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (recognizing that preliminary injunctions have the

effect of of denying the public interest in the enforcement of its laws).

V. CONCLUSION

For the reasons stated above, Defendant Pablos respectfully asks the Court to deny

Plaintiffs Motion for Preliminary and Permanent Injunctions and Temporary Restraining Order.

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Respectfully submitted.

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

ANGELA V. COLMENERO
Chief, General Litigation Division

/s/ Esteban S.M. Soto_____________

ESTEBAN S.M. SOTO
State Bar No. 24057887
MICHAEL R. ABRAMS
State Bar No. 24087072
Assistant Attorneys General
GENERAL LITIGATION DIVISION
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120 (512) 320-0667 (FAX)
esteban.soto@oag.texas.gov
michael.abrams@oag.texas.gov

ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has served through
the Courts Electronic Filing System on December 18, 2017, to the following:

Chris K. Gober
THE GOBER GROUP PLLC
3595 RR 620 S., Suite 200
Austin, Texas 78738
Telephone: 512-354-1783
Facsimile: 877-437-5755
cg@gobergroup.com

ATTORNEY FOR PLAINTIFFS

/s/ Esteban S.M. Soto _____________

ESTEBAN S.M. SOTO
Assistant Attorney General

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