Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

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1 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION WILLIE RAY, ET AL. Vs. CIVIL ACTION NO. 2:06-CV-385 STATE OF TEXAS, ET AL. FINDINGS OF FACT AND CONCLUSIONS OF LAW On October 30, 2006, e court considered Defendants Rule 12(b) Motion to Dismiss and Plaintiffs Motion for Preliminary Injunction. Pursuant to Fed. R. Civ. P. 52, e court issues ese findings of fact and conclusions of law. Any finding of fact at is actually a conclusion of law should be treated as such. Any conclusion of law at is actually a finding of fact should be treated as such. 1. Plaintiff Willie Ray ( Ray ) is an African-American female and is a publicly elected member of e Texarkana City Council. She is affiliated wi e Democratic Party. 2. Ray has provided assistance to registered voters in e past wi regard to e casting of mailin ballots, and wishes to provide lawful assistance to voters in e future. 3. Ray was indicted by e State of Texas in 2005 because she allegedly possessed and mailed ballots for voters who needed or requested assistance wi eir mail-in ballots. She pled guilty to violating Section of e Texas Election Code. 4. Plaintiff Gloria Meeks ( Meeks ) is an African-American female, registered to vote in Tarrant County, and affiliated wi e Democratic Party.

2 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 2 of Plaintiff Rebecca Minneweaer ( Minneweaer ) is an African-American female, registered to vote in Tarrant County, and affiliated wi e Democratic Party. 6. Meeks and Minneweaer are e subjects of investigations by e Defendants for allegedly possessing and mailing ballots of oer voters in Tarrant County. They have assisted voters in e past and desire to assist em in e future. 7. Plaintiff Parenia McDonald ( McDonald ) is an African-American female, a registered voter in Tarrant County, and is affiliated wi e Democratic Party. 8. McDonald is a homebound individual who is 78 years old and requires assistance to vote. She is handicapped and uses a wheelchair. The assistance she requires includes e actual mailing of e ballot. 9. Plaintiff Texas Democratic Party is a political party organized and existing under e laws of e State of Texas. The Texas Democratic Party encourages its party activists and local organizers to try to maximize voter turnout, particularly among e elderly and disabled. 10. Defendant Greg Abbott ( General Abbott ) is e Attorney General for e State of Texas. General Abbott is sued in his official capacity. 11. Defendant Roger Williams ( Secretary Williams ) is e Secretary of State for e State of Texas. Secretary Williams is sued in his official capacity. 12. Texas law provides a statutory right to cast a ballot by mail for any qualified voter who is 65 years or older on Election Day, who will be absent from e county of residence on election day, or who is disabled or ill. Tex. Elec. Code The process of early voting by mail generally requires e completion of an application for a ballot, e review and acceptance of at application by an early voting clerk, e mailing of e 2

3 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 3 of 14 ballot, e official ballot envelope, and an official carrier envelope to e voter, and e marking and return of e ballot, ballot envelope and e carrier envelope to e early voting clerk. 14. Historically, individuals, political parties, and oer organizations in certain communities have attempted to maximize voter turnout by assisting voters in casting eir mail-in ballots. 15. This assistance has been widely used by bo of e major Texas political parties, and it is particularly beneficial to elderly, homebound, disabled, and illiterate voters. 16. The assistance comes in many forms. For example, party activists might provide or mail pre-filled early voting applications to voters, who en need only sign and return e application. The assistance also includes helping voters who have received mail-in ballots to mark e ballots (for ose who are blind and cannot read or write); and physically placing sealed ballots in e mail for voters using mail-in ballots. 17. In 2003, e Texas Legislature amended e Election Code. The amendments at issue in is case relate to mail-in voting. Steven Wohlens, a Democratic State Representative, was e chief architect of e legislation. The legislation is referred to as House Bill ( H.B. ) Representative Wohlens began work on H.B. 54 after vote fraud allegations arose in Dallas elections when his wife, former Democratic Dallas Mayor, Laura Miller, was running for office. Representative Wohlens has stated at he and his wife had been victimized as political candidates by rigged elections wi people harvesting votes. A co-auor of e legislation, Republican Representative Mary Denny, has also indicated at e bill was intended to provide a way to prosecute e organizers of vote harvesting. As used by e proponents of H.B. 54, e term vote harvesting generally refers to vote fraud in e early voting process. 19. The House Committee on Elections reported at under e law as it existed before e 3

4 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 4 of 14 amendments, it was difficult to prosecute persons who unduly influenced an election. HOUSE COMM. ON ELECTIONS, BILL ANALYSIS, Tex. H.B. 54, 78 Leg., R.S. 1 (2003). Certain individuals had unlawfully assisted voters wi completing early voting ballot applications and wi marking and delivering eir ballots. Id. In addition, some persons had engaged in e buying and selling of mail ballots to alter election outcomes. Id. 20. The legislative history indicates at e supporters of e bill had determined at e law governing absentee voting by mail needed to be tightened and oversight needed to be stricter because, [b]y its nature, mail-in voting from home is out of e public view and erefore vulnerable to fraud. HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 54, 78 Leg., R.S. 6. Supporters of e new law were attempting to combat organized fraud at can occur in nursing homes and assisted living facilities. Id. Allegations of such fraud were common roughout e country. Id. According to e legislative history, e conduct of vote brokers typically involves visit[ing] senior citizens and persuad[ing] em to vote a certain way or to allow someone else to mark eir ballots. Id. at 7. The legislative history indicates at vote brokers were rarely caught because [i]f a voter reported to officials at a campaign worker came into e home and unduly influenced e voter or took e voter s ballot to be mailed, almost no means exist[ed] to track down e campaign worker. Id. 21. In addition to e statements in e bill analyses and e committee hearings, e record contains an official statement of legislative intent regarding H.B. 54: The intent of is bill is to provide a definition for assistance in voting, to make it clear what at assistance is, and to provide penalties for violation of e law. It is also to address tracking, so at we know what e identity is of everybody assisting voters. It is to provide penalties if ey don t fill out correctly, it s to prohibit warehousing of votes, and it s to change e law as to making public who receives who requests and who receives an absentee ballot. 4

5 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 5 of 14 H.J. OF TEX., 78 Leg., R.S., 1282 (2003). 22. H.B. 54 passed wi bi-partisan support. H.J. OF TEX., 78 Leg., R.S (2003); S.J. OF TEX., 78 Leg., R.S (2003). 23. Alough e plaintiffs raise challenges to several statutory provisions included in e 2003 amendments, e court will address only one for purposes of preliminary injunctive relief. Wi respect to e oer challenged provisions, e court finds at injunctive relief is improper because even assuming at e plaintiffs claims are meritorious, e court could not award meaningful relief in e form of a preliminary injunction given e current timetable governing e elections. 24. For purposes of evaluating e motion for preliminary injunction, e court will limit its consideration to Tex. Elec. Code Section deals wi e return of early mail-in ballots. 25. Section provides at: (a) (b) (c) (d) A marked ballot voted under is chapter must be returned to e early voting clerk in e official carrier envelope. The carrier envelope may be delivered in anoer envelope and must be transported and delivered only by mail or by common or contract carrier. Except as provided by Subsection (c), a carrier envelope may not be returned in an envelope or package containing anoer carrier envelope. The carrier envelopes of persons who are registered to vote at e same address may be returned in e same envelope or package. Each carrier envelope at is delivered by a common or contract carrier must be accompanied by an individual delivery receipt for at particular carrier envelope at indicates e name and residence address of e individual who actually delivered e envelope to e carrier and e date, hour, and address at which e carrier envelope was received by e carrier. A delivery of carrier envelopes is prohibited by a common or contract carrier if e delivery originates from e address of: (1) an office of a political party or a candidate in e election; 5

6 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 6 of 14 (2) a candidate in e election unless e address is e residence of e early voter; (3) a specific-purpose or general-purpose political committee involved in e election; or (4) an entity at requested at e election be held, unless e delivery is a forwarding to e early voting clerk. (e) (f) Carrier envelopes may not be collected and stored at anoer location for subsequent delivery to e early voting clerk. The secretary of state shall prescribe appropriate procedures to implement is subsection and to provide accountability for e delivery of e carrier envelopes from e voting place to e early voting clerk. A person commits an offense if e person knowingly possesses an official ballot or official carrier envelope provided under is code to anoer. Unless e person possessed e ballot or carrier envelope wi intent to defraud e voter or e election auority, it is an affirmative defense to prosecution under is subsection at e person, on e date of e offense, was: (1) related to e voter wiin e second degree of affinity or e ird degree of consanguinity, as determined under Subchapter B, Chapter 573, Government Code; (2) registered to vote at e same address as e voter; (3) an early voting clerk or a deputy early voting clerk; (4) a person who possesses e carrier envelope to deposit e envelope in e mail or wi a common or contract carrier and who provides e information required by Section (b) in accordance wi at section; (5) an employee of e United States Postal Service working in e normal course of e employee s auorized duties; or (6) a common or contract carrier working in e normal course of e carrier s auorized duties if e official ballot is sealed in an official carrier envelope at is accompanied by an individual delivery receipt for at particular carrier envelope. (g) An offense under Subsection (f) is: (1) a Class B misdemeanor if e person possesses at least one but fewer an 10 6

7 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 7 of 14 ballots or carrier envelopes unless e person possesses e ballots or carrier envelopes wiout e consent of e voters, in which event e offense is a state jail felony; (2) a Class A misdemeanor if e person possesses at least 10 but fewer an 20 ballots or carrier envelopes unless e person possesses e ballots or carrier envelopes wiout e consent of e voters, in which event e offense is a felony of e ird degree; or (3) a state jail felony if e person possesses 20 or more ballots or carrier envelopes unless e person possesses e ballots or carrier envelopes wiout e consent of e voters, in which event e offense is a felony of e second degree. (h) A ballot returned in violation of is section may not be counted. If e early voting clerk determines at e ballot was returned in violation of is section, e clerk shall make a notation on e carrier envelope and treat it as a ballot not timely returned in accordance wi Section (c). If e ballot is returned before e end of e period for early voting by personal appearance, e early voting clerk shall promptly mail or oerwise deliver to e voter a written notice informing e voter at: (1) e voter s ballot will not be counted because of a violation of is code; and (2) e voter may vote if oerwise eligible at an early voting polling place or e election day precinct polling place on presentation of e notice. 26. Tex. Elec. Code (b) provides at [a] person oer an e voter who deposits e carrier envelope in e mail or wi a common or contract carrier must provide e person s signature, printed name, and residence address on e reverse side of e envelope. 27. Plaintiffs contend at prevents em and dissuades oers, under e pain of prosecution, from participating in legitimate organizational efforts designed to maximize early voter turnout. The evidence found to be persuasive indicates at in fact has at effect on organizational efforts. 7

8 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 8 of 14 CONCLUSIONS OF LAW 1. The Court grants in part e motion of e State of Texas to dismiss any constitutional claims brought against it in its sovereign capacity. U.S. Const. amend. XI. The court will, however, decide e constitutional claims pursuant to Ex parte Young, 209 U.S. 123 (1908). The State officials are sued in eir official capacities and ey are e officials responsible for enforcing e challenged provision of e Texas Election Code. 2. The court has subject matter jurisdiction over e plaintiffs constitutional and Voting Rights Act claims. 28 U.S.C Heck v. Humphrey, 512 U.S. 477 (1994) does not bar e claims of Plaintiffs Ray and Johnson. Heck and its progeny prohibit a prisoner from challenging e conditions of his confinement rough a 1983 suit instead of proceeding rough habeas corpus. Ray and Johnson do not challenge eir past convictions or sentences for violations of e Election Code. They seek prospective relief in e form of an injunction against enforcement of e same provisions in future elections. 4. The motion to dismiss for lack of venue or to transfer for improper venue is denied, in light of e court s rejection of e defendants argument at Heck precludes e claims of Ray and Johnson. Venue is proper in is district. 28 U.S.C For purposes of assessing e motion for preliminary injunction, it is unnecessary to consider e defendants oer arguments for dismissal, except as ey may be relevant to e plaintiffs showing on e merits of e motion for preliminary injunction. 6. Plaintiffs are entitled to a preliminary injunction if ey establish e following: (1) a substantial likelihood of success of e merits; (2) a substantial reat of irreparable harm if e 8

9 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 9 of 14 injunction is not granted; (3) at e reatened injury outweighs any harm at may result from e injunction to e non-movant; and (4) at e injunction will not undermine e public interest. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5 Cir. 1997); Canal Auority of Florida v. Callaway, 489 F.2d 569, 572 (5 Cir. 1974); Cisco Sys., Inc. v. Huawei Tech. Co., 266 F.Supp. 2d 551, 553 (E.D. Tex. 2003). 7. In an election law case, a court considering a preliminary injunction request must also weigh considerations specific to election cases. Purcell v. Gonzalez, Nos. 06A375 (06-532) & 06A379 (06-533), 2006 WL , at *2 (U.S. Oct. 20, 2006)(per curiam). The court should consider wheer an order affecting elections may result in voter confusion and incentive to remain away from e polls. When an election is near, e court should consider wheer to allow e election to proceed wiout an injunction suspending an election regulation. Id. 8. Voting is of e most fundamental significance in our constitutional system. Texas Indep. Party v. Kirk, 84 F.3d 178, 182 (5 Cir. 1996)(citing Burdick v. Takushi, 504 U.S. 428 (1992)). Voting implicates basic constitutional rights under e First and Fourteen Amendments. Anderson v. Celebrezze, 460 U.S. 780, 786 & n.7 (1983). 9. Under Anderson, e court: must first consider e character and magnitude of e asserted injury to e rights protected by e First and Fourteen Amendments at e plaintiff seeks to vindicate. It must en identify and evaluate e precise interests put forward by e State as justifications for e burden imposed by its rule. In passing judgment, e Court must not only determine e legitimacy and streng of each of ose interests, it must also consider e extent to which ose interests make it necessary to burden e plaintiff s rights. Only after weighing all ese factors is e reviewing court in a position to decide wheer e challenged provision is unconstitutional. 406 U.S. at 788; see also Kirk, 84 F.3d at 182; Pilcher v. Rains, 853 F.2d 334, 336 (5 Cir. 1988). 9

10 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 10 of The Anderson/Burdick framework is a flexible one. When First and Fourteen Amendment rights are subject to severe restrictions, e regulation must be narrowly drawn to advance a state interest of compelling interest. See Burdick, 504 U.S. at 434. In contrast, if a challenged provision imposes only reasonable, non-discriminatory restrictions upon e First and Fourteen Amendment rights of voters, e State s important regulatory interests are generally sufficient to justify e restrictions. Id. 11. Alough ere is a fundamental right to vote, e Supreme Court has held ere is no corresponding fundamental right to receive and cast an absentee ballot. McDonald v. Bd. of Election Comm rs of Chicago, 394 U.S. 802 (1969); see also Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1186 (Ill. App. Ct. 2004). 12. In light of McDonald, is court holds at strict scrutiny does not apply to e challenged provision. Nevereless, e challenged statute is applicable only to elections, which, by eir nature, involve important First and Fourteen Amendment rights. It is erefore appropriate to assess e asserted injury to e plaintiffs and to examine e precise interest put for by e State as justification for e burden on e plaintiffs rights. Only en can e court determine wheer e challenged provision is constitutional. See Coam v. Garza, 905 F. Supp. 389, (S.D. Tex. 1995)(striking provision of Texas Election Code at banned e voter s possession of written communications in voting boo, despite e court s conclusion at e provision did not severely burden voter s rights because e challenged law was not necessary to achieve e State s interest in preventing fraud). Under e current posture of e case, e court is engaged in is exercise to determine wheer e plaintiffs have met eir burden of showing a substantial likelihood at ey will prevail on e merits of is challenge. 10

11 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 11 of The plaintiffs contend at e challenged provision criminalizes e mere possession of an official ballot or carrier envelope provided to anoer. According to e plaintiffs, e regulation dissuades em and oers, under e pain of prosecution, from participating in legitimate organizational efforts designed to maximize early voter turnout even when ese efforts do not involve providing illegal assistance to voters or engaging in voter fraud. In addition, a violation of results in e cancellation of e vote, even under circumstances not amounting to fraud or unlawful voter assistance. 14. The State s asserted interest in e regulation is curtailing voter fraud. See Defendants Response Brief at 22. This is a well-recognized and compelling interest. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 231 (1989)( A State indisputably has a compelling interest in preserving e integrity of its election process ). 15. Texas has an established statutory scheme designed to prevent voting fraud. In provisions applicable bo to in-person and mail-in voting, Texas law criminalizes illegal voting, Tex. Elec. Code , as well as providing unlawful assistance to a voter. Id (1)-(3). Texas law also criminalizes e provision of false information on an application for a mail-in ballot. Id In addition, e Texas Election Code requires persons, oer an e voter, who deposit an official carrier envelope in e mail, to provide eir name, address, and signature on e carrier envelope. Tex. Elec. Code (b). Subject to certain exceptions, Texas law provides criminal penalties for e failure to comply wi is law. Tex. Elec. Code (c)-(e). 17. Section (f) makes it a criminal offense to possess an official ballot or carrier envelope provided to anoer. Tex. Elec. Code (f). Alough e statute provides several affirmative 11

12 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 12 of 14 defenses to prosecution, see id., e defendants able counsel recognized at e statute provides for an offense for e mere possession of an official ballot or carrier envelope of anoer. At argument, counsel suggested at no reasonable prosecutor would ever seek an indictment if e elements of an affirmative defense were clearly present. He stopped short, however, of representing at e language of e statute would not allow such a prosecution. 18. For purposes of evaluating e motion for preliminary injunction, e court may assume, arguendo, at e affirmative defenses provided under e statute would be construed literally if not practically as exceptions to criminal liability. What makes is statute particularly burdensome is at it does not provide for any exception to criminal liability if e person possessing e official ballot or carrier envelope has e consent of e voter. This is e only fair reading of e statute as a whole, given at e penalties for possession are explicitly enhanced if e person possessing e ballots acts wiout e consent of e voters. See Tex. Elec. Code (g). 19. The State s interest in combating voter fraud is sufficiently served by e oer provisions of e Election Code. In particular, , (1)-(3), and are all aimed at curtailing voter fraud and are applicable to mail-in balloting. The State suggests, however, at a disclosure provision of reasonable scope is necessary to prevent voting fraud occurring in connection wi early mail-in voting. On e limited record before it, e court agrees wi is position. Section 's disclosure requirement is us sufficiently justified by at interest. Section (f), however, goes too far. Its criminal penalties and disqualification of e vote for e mere possession of a ballot or carrier envelope are not necessary to achieve e State s interest in curtailing fraud when possession occurs wi e voter s consent. 20. Plaintiffs have demonstrated a substantial likelihood of success on e merits of eir claim 12

13 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 13 of 14 at 's prohibition on e possession of carrier envelopes and ballots provided to oers unduly burdens e First and Fourteen Amendment rights of e plaintiffs under circumstances in which e voter consents to at possession. 21. Plaintiffs have not demonstrated a substantial likelihood of success on e merits of eir claim at unduly burdens eir First and Fourteen Amendment rights in light of e State s asserted interest in requiring disclosure to curtail fraud in e early voting by mail process. In light of e testimony at e hearings held on H.B. 54, e State could permissibly require disclosure of e identity of persons oer an e voter who deposit e carrier envelope in e mail to aid law enforcement officers in investigating allegations of voting fraud. This is true even if e voter consents to allowing anoer person to deposit e ballot and carrier envelope in e mail. 22. Plaintiffs have satisfied eir burden to demonstrate ey will suffer irreparable harm absent an injunction. See Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5 Cir. 1996). 23. The balance of hardships favors e plaintiffs. 24. The public interest is not disserved by e injunction. The court has considered e scope of its injunction in light of e proximity of e election and concludes at e injunction will not dissuade voters from participating in e political process because of any fear at eir votes will be diluted. The scope of e injunction will not result in voter confusion or create any incentive to remain away from e polls. 25. The plaintiffs have not satisfied eir burden of persuasion to merit preliminary injunctive relief on eir claim at e statute is overbroad or void for vagueness. 26. The plaintiffs have not satisfied eir burden of persuasion to merit preliminary injunctive relief on eir claim at e challenged provision conflicts wi Section 208 of e Voting Rights 13

14 Case 2:06-cv TJW Document 17 Filed 10/31/2006 Page 14 of 14 Act. 27. The court has issued a preliminary injunction in accordance wi ese findings of fact and conclusions of law. 14