Case: 20-50407 Document: 00515441096 Page: 9 Date Filed: 06/04/2020 No. 20-50407 each in turn. 1. The state officials—supported by Louisiana and Mississippi as amici— assert that this case is a nonjusticiable political question, because the plaintiffs “essentially ask the federal courts to determine whether the State’s efforts to combat [the Virus] in the context of elections have been adequate.” 14 In their view, “no manageable standard exists to resolve whether the State has done enough to protect voters from this pandemic.” Relatedly, Louisiana and Mississippi suggest that the district court could not have reached its decision 591 F.3d 741, 745 (5th Cir. 2009) (ellipses omitted). The second factor is flexible—it is satisfied if the constitutional questions will be “substantially modified,” id., or otherwise “present[ed] in a different posture,” Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980). The district court’s reasons for not abstaining are suspect. The court stated that “resolution by the State court [would] not [have] render[ed] this case moot nor [have] materially alter[ed] the constitutional questions presented.” But at the time of its ruling, the opposite was true. The plaintiffs raised federal constitutional challenges to Texas’s vote-by-mail scheme, and the Texas Supreme Court’s determination as to whether lack of immunity to the Virus equaled a “disability” was bound to alter how the constitutional issues would be presented. If the plaintiffs had succeeded before the Texas Supreme Court, all Texas voters could have applied to vote by mail under the disability provision. See TEX. ELEC. CODE § 82.002. Moreover, the plaintiffs’ void-for-vagueness, voter-intimidation, and First Amendment claims all turn in substantial part on how the Texas Supreme Court was to interpret that disability provision. That much should have been obvious, given that the district court itself felt the need to interpret the disability provision. The district court relied almost exclusively on cases from the Eleventh Circuit. But whatever that court has held, we have stated that “traditional abstention principles apply to civil rights cases,” Romero v. Coldwell, 455 F.2d 1163, 1167 (5th Cir. 1972) (abstaining in a voting-rights case), including election-law cases involving important and potentially disposetive state-law issues, see, e.g., Moore, 591 F.3d at 745–46 (ballot-access case); United States v. Texas, 430 F. Supp. 920, 927–31 (S.D. Tex. 1977) (three-judge court). The district court’s ruling turned our jurisprudence on its head. The plaintiffs suggest that the state officials waived this contention. Not so. Questions of justiciability are jurisdictional and non-waivable. See Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 948 (5th Cir. 2011) (“[T]he concept of justiciability, as embodied in the political question doctrine, expresses the jurisdictional limitations imposed upon federal courts by the case or controversy requirement of Article III.” (quotation marks and brackets omitted)). 14 9