Case: 20-50407
Document: 00515441096
Page: 15
Date Filed: 06/04/2020
No. 20-50407
secure a “consistent application of state law”; to the contrary, their case before
the state courts focused solely on state-law issues.
The second contention also runs into a significant roadblock. As we recognized above, our precedent suggests that the Secretary of State bears a sufficient connection to the enforcement of the Texas Election Code’s vote-by-mail
provisions to support standing. See OCA-Greater Hous., 867 F.3d at 613. That,
in turn, suggests that Young is satisfied as to the Secretary of State. See
Austin, 943 F.3d at 1002. But, as discussed above, because the Governor “is
not statutorily tasked with enforcing the challenged law[s], . . . our Young
analysis,” at least as to him, “ends.” Abbott, 956 F.3d at 709 (quotation marks
omitted).
Finally, though the state officials’ third contention raises a close question, they have not shown that they are likely to succeed. They acknowledge
that General Paxton “has concurrent jurisdiction with local prosecutors to prosecute election fraud.”
And a state attorney general’s sending letters
threatening enforcement is enough to satisfy Young. 23 Such action goes beyond
merely making a public statement that a law will be enforced. 24 Though the
state officials maintain that General Paxton’s letters did not constitute
enforcement threats, NiGen prevents the officials from making the necessary
“strong showing” that their position is likely to be vindicated. Nken, 556 U.S.
at 426.
See NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393–95 (5th Cir. 2015). We have
recognized that NiGen “did not explicitly examine [General] Paxton’s ‘connection to the
enforcement’ of the [state statute].” Austin, 943 F.3d at 1001. Nevertheless, “the fact that
Paxton sent letters threatening enforcement of the [state statute] makes it clear that he had
not only the authority to enforce [it], but was also constraining the [plaintiff’s] activities, in
that it faced possible prosecution.” Id.
23
See Abbott, 956 F.3d at 709 (“[O]ur cases do not support the proposition that an
official’s public statement alone establishes authority to enforce a law, or the likelihood of his
doing so, for Young purposes.”).
24
15
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