Case: 20-50407
Document: 00515441096
Page: 10
Date Filed: 06/04/2020
No. 20-50407
without first having made an impermissible policy determination.
For
support, the state officials and their amici rely primarily on a recent district
court case challenging Georgia’s plans for holding upcoming primary elections.
See Coal. for Good Governance v. Raffensperger, No. 1:20-CV-1677-TCB, 2020
WL 2509092 (N.D. Ga. May 14, 2020).
That contention is unlikely to gain traction. The Coalition case is different in kind. 15 That challenge was directed at the specific procedures Georgia
planned to use to conduct the election, such as whether to use electronic voting
machines or paper ballots. Id. at *1. In other words, the suit challenged the
wisdom of Georgia’s policy choices. But to resolve this appeal, we need not—
and will not—consider the prudence of Texas’s plans for combating the Virus
when holding elections. Instead, we must decide only whether the challenged
provisions of the Texas Election Code run afoul of the Constitution, not
whether they offend the policy preferences of a federal district judge. The standards for resolving such claims are familiar and manageable, and federal
courts routinely entertain suits to vindicate voting rights. 16
2.
The state officials contend that they are likely to show that the plaintiffs
lack standing. 17 “To establish standing under Article III of the Constitution, a
The other cases on which the state officials and their amici rely—most notably,
Rucho v. Common Cause, 139 S. Ct. 2484 (2019), which involved partisan gerrymandering,
and Jacobson v. Florida Secretary of State, 957 F.3d 1193, 1212–23 (11th Cir. 2020) (W. Pryor,
J., concurring), which involved the allocation of the top position on the state’s paper ballots—
are also of no help.
15
See, e.g., Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc) (considering constitutional challenge to Texas’s voter-identification law).
16
The state officials raise a standing problem only as to the plaintiffs’ challenges to
Texas’s vote-by-mail provisions, for which Governor Abbott and Secretary Hughs could be
potential enforcers. The state officials do not contend that the plaintiffs lack standing to
press their voter intimidation or First Amendment claims against General Paxton.
17
10
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