OCA-Greater Houston, et al v. State of Texas, et al

Filing

PUBLISHED OPINION FILED. [16-51126 Affirmed in Part, Vacated in Part and Remanded] Judge: PEH, Judge: JEG, Judge: SAH. Mandate pull date is 09/06/2017 [16-51126]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-51126

United States Court of Appeals
Fifth Circuit

FILED
August 16, 2017

OCA-GREATER HOUSTON; MALLIKA DAS,

Lyle W. Cayce
Clerk

Plaintiffs - Appellees
v.
STATE OF TEXAS; ROLAND B. PABLOS, In his official capacity as Texas
Secretary of State and Chief Election Officer,
Defendants - Appellants

Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This is a challenge to a Texas voting law imposing a restriction on the
interpretation assistance that English-limited voters may receive. The greater
Houston branch of the Organization for Chinese Americans (“OCA”) filed suit
seeking a declaration that a certain provision of the Texas Election Code
conflicted with, and was therefore preempted by, Section 208 of the federal
Voting Rights Act (“VRA”). The State of Texas and its Secretary of State
(collectively, “Texas”) defended on the grounds that OCA lacked standing, that
OCA had named the wrong State defendant, and that Texas’s election laws
were VRA-compliant. The district court agreed with OCA and entered

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summary judgment in its favor on all of those issues and an injunction against
Texas. Texas appealed, reurging each of its defenses, and additionally arguing
that the district court entered a deficient injunction. We affirm in part, vacate
in part, and remand.
I
A
Congress passed the VRA in 1965 to address “entrenched racial
discrimination in voting,” which was “‘an insidious and pervasive evil which
had been perpetuated in certain parts of our country through unremitting and
ingenious defiance of the Constitution.’” 1 Its central features were Section 2,
which banned in all fifty states any “standard, practice, or procedure . . .
imposed or applied . . . to deny or abridge the right of any citizen of the United
States to vote on account of race or color”; Section 4, which banned the use of
any “test or device” employed “for the purpose or with the effect of denying or
abridging the right to vote on account of race or color” by certain covered states;
and Section 5, which provided for certain covered states that “no change in
voting procedures could take effect until it was approved by federal authorities
in Washington, D.C. . . . .” 2
This appeal concerns a more recent, and less visible, addition to the VRA.
Section 208, added in 1984, states: “Any voter who requires assistance to vote
by reason of blindness, disability, or inability to read or write may be given
assistance by a person of the voter’s choice, other than the voter’s employer or
agent of that employer or officer or agent of the voter’s union.” 3 The question

Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612, 2618 (2013) (quoting South Carolina v.
Katzenbach, 383 U.S. 301, 309 (1966)).
2 Id. at 2619–20.
3 52 U.S.C. § 10508 (formerly 42 U.S.C. § 1973aa-6).
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posed here is whether a provision in Texas’s Election Code frustrates this
federal statutory right.
We turn first to several different provisions of the Texas Election Code
distinguishing between voter “assistors” and voter “interpreters.” Chapter 64B
establishes the requirements and procedures for a voter to receive “assistance.”
Under Tex. Elec. Code § 64.031:
A voter is eligible to receive assistance in marking the ballot, as
provided by this subchapter, if the voter cannot prepare the ballot
because of:
(1) a physical disability that renders the voter unable to write or
see; or
(2) an inability to read the language in which the ballot is
written.
“[O]n a voter’s request for assistance in marking the ballot, two election officers
shall provide the assistance.” 4 However, “[o]n the voter’s request, the voter may
be assisted by any person selected by the voter other than the voter’s employer,
an agent of the voter’s employer, or an officer or agent of a labor union to which
the voter belongs.” 5 Texas defines “assistance” as “conduct by a person other
than the voter that occurs while the person is in the presence of the voter’s ballot
or carrier envelope,” and includes “reading the ballot to the voter,” “directing
the voter to read the ballot,” “marking the voter’s ballot,” and “directing the
voter to mark the ballot.” 6
Chapter 61B establishes the requirements and procedures for a voter to
have an “interpreter.” “[A]n election officer may not use a language other than

Id. § 64.032(a).
Id. § 64.032(c). Whoever the voter selects must take an oath swearing that he or she
is none of those things to the voter. Id. § 64.034.
6 Id. § 64.0321 (emphasis added).
4
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English in performing an official duty in connection with the election.” 7
However, “[i]f a voter cannot communicate in English, an election officer may
communicate with the voter in a language that the voter and the officer
understand.” 8 “If an election officer who attempts to communicate with a voter
does not understand the language used by the voter, the voter may
communicate through an interpreter selected by the voter.” 9 Important to this
case, “[t]o be eligible to serve as an interpreter, a person must be a registered
voter of the county in which the voter needing the interpreter resides.” 10 “If a
voter cannot comprehend the language in which the ballot is printed, an
interpreter may accompany the voter to the voting station for the purpose of
translating the ballot to the voter.” 11
In combined effect, these provisions grant to physically disabled and
English-limited Texas voters the right to select any assistor of their choice,
subject only to the restrictions expressed in Section 208 of the VRA itself (i.e.,
the assistor cannot be the voter’s employer, an agent of the voter’s employer,
or an agent of the voter’s labor union 12). However, as Texas has defined this
assistance right, it is available to a voter only “in the presence of the voter’s
ballot or carrier envelope,” for the purpose of reading and marking the ballot. 13
English-limited Texas voters are granted a supplemental right: they may
select an interpreter to aid them outside the ballot box, but the interpreter
must “be a registered voter of the county in which the voter needing the

Id. § 61.031(a).
Id. § 61.031(b).
9 Id. § 61.032. Whoever the voter selects must take an oath swearing that he or she
“will correctly interpret and translate each question, answer, or statement addressed either
to the voter by any election officer or to an election officer by the voter.” Id. § 61.035.
10 Id. § 61.033.
11 Id. § 61.034.
12 Compare 52 U.S.C. § 10508 with Tex. Elec. Code § 64.032(c).
13 Tex. Elec. Code § 64.0321.
7
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interpreter resides.” 14 The challenge here asks whether this limit of an
interpreter to a registered voter of the county abridges the right guaranteed by
Section 208 of the VRA.
B
In October of 2014, Mallika Das, an English-limited American citizen
born in India, attempted to vote in Williamson County, Texas. Because she had
trouble understanding English, she brought her son with her to interpret. Her
son was not registered to vote in Williamson County. When the pair arrived at
the polling location, a Texas election officer refused to allow Das’s son to
interpret, citing the Texas law requiring that interpreters be registered to vote
in the voter’s county of residence. Das attempted to complete her ballot alone,
but could not due to her limited English.
OCA is a nonprofit organization “dedicated to the . . . mission of
advocating for and protecting and advancing the rights of Chinese Americans
and Asian Pacific Americans.” One of its primary missions is to promote civic
participation and provide civic education, which it carries out through a “Get
Out the Vote” initiative. OCA redirected some of its efforts and resources
toward educating its members and other members of the public about the
problem that befell Das and how to avoid it. Further, it filed this lawsuit, joined
by Das, against the State of Texas and its Secretary of State, alleging that the
interpreter restriction expressed in Tex. Elec. Code § 61.033 violated Section
208 of the VRA and that Das had been deprived of her federal rights. 15
While this suit was pending in the district court, Das passed away. OCA
does not suggest that her 42 U.S.C. § 1983 cause of action survived her. Texas
then challenged OCA’s standing to sue for declaratory and injunctive relief

14
15

Id. § 64.033.
Williamson County was initially a defendant, but settled before this appeal.

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under the VRA. The district court convened an evidentiary hearing to examine
OCA’s standing as an organization, at which both parties presented evidence.
Texas argued that the undisputed facts did not confer standing upon OCA—
both because OCA itself had suffered no cognizable injury and because any
injury was neither traceable to nor redressable by the named State defendant.
The district court found that OCA had organizational standing and had named
the correct State defendant.
C
On the merits, OCA argues that Texas’s requirement that the voter’s
chosen interpreter be registered to vote in the voter’s county of residence
violates Section 208 of the VRA because Section 208 lacks this restriction on
voter choice. Texas replies that Section 208 establishes a federal statutory
right to an interpreter only “inside the ballot box,” so to speak—a restrictive
view of the term “to vote” encompassing only actions like reading and marking
the ballot. Hence, according to Texas, its “assistance” provisions supply the full
scope of the right granted by Section 208; its “interpreter” provisions are
additional protections outside the scope of Section 208, unable to foul it. On the
parties’ cross-motions for summary judgment, the district court agreed with
OCA and entered judgment that Texas’s statutory restriction on voter
interpreters conflicted with Section 208 of the VRA. It enjoined Texas from
“engaging in any practice that denies the rights secured by Section 208 of the
Voting Rights Act.”
We first examine federal jurisdiction, then turn to the merits of OCA’s
challenge, and Texas’s challenge to the scope and specificity of the district
court’s injunction.

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II
We begin, as we must, with Texas’s challenge to our jurisdiction. 16 That
challenge takes two forms: OCA’s standing and Texas’s sovereign immunity.
A
To have standing, an association or organization must satisfy the
well-known requirements of Lujan:
First, the plaintiff must have suffered an “injury in fact”—an
invasion of a legally protected interest which is (a) concrete
and particularized; and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical.’” Second, there must be a causal
connection between the injury and the conduct complained
of—the injury has to be “fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable decision.” 17
Texas contests all three elements of this test. We examine standing de novo. 18
1
An association or organization can establish an injury-in-fact through
either of two theories, appropriately called “associational standing” and
“organizational standing.” 19 “Associational standing” is derivative of the
standing of the association’s members, requiring that they have standing and

See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause.” (quoting Ex parte McCardle, 74
U.S. 506, 514 (1868))).
17 NAACP v. City of Kyle, Tex., 626 F.3d 233, 237 (5th Cir. 2010) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
18 Id. at 236.
19 Id. at 237.
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that the interests the association seeks to protect be germane to its purpose. 20
By contrast, “organizational standing” does not depend on the standing of the
organization’s members. The organization can establish standing in its own
name if it “meets the same standing test that applies to individuals.” 21 Here,
OCA relies exclusively on the latter, organizational theory of standing.
OCA’s claimed injury-in-fact is the “additional time and effort spent
explaining the Texas provisions at issue to limited English proficient voters”
because “addressing the challenged provisions frustrates and complicates its
routine community outreach activities.” The undisputed summary-judgment
evidence established that OCA’s primary mission is voter outreach and civic
education, particularly “getting out the vote” among its members. Because a
substantial portion of OCA’s membership consists of people with limited
English proficiency, Texas’s voter interpreter restriction has deterred some of
them from voting. In response, OCA calibrated its outreach efforts to spend
extra time and money educating its members about these Texas provisions and
how to avoid their negative effects. Specifically, OCA employees and volunteers
must carefully explain to those it contacts, in the language they understand,
that when they bring an interpreter to a Texas polling location, the interpreter
must identify his or herself as an “assistor” rather than as an “interpreter” to
avoid being turned away under Texas law like Das’s son was. And OCA
explains that these in-depth conversations take more time than merely
explaining the requirements of the VRA, and therefore OCA must spend more
time on each call (and reach fewer people in the same amount of time) because
of Texas’s law.

Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006). See also Hunt
v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
21 Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999).
See also Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982).
20

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Texas argues that this court’s precedent mandates the rejection of OCA’s
claimed injury-in-fact as a cognizable injury within the meaning of the Lujan
test, relying on NAACP v. City of Kyle. In that case, the City had revised its
zoning and subdivision ordinances in a way that allegedly disproportionately
disadvantaged black and Hispanic home seekers in violation of the Fair
Housing Act. 22 Various branches of the NAACP and two home builders
associations brought suit to enjoin enforcement of the changes. 23 The NAACP
had claimed associational standing, and the builders associations had claimed
organizational standing, but on appeal the plaintiffs abandoned their claim to
associational standing and relied entirely on organizational standing. 24
Those plaintiffs acknowledged that their litigation efforts could not
establish injury, so instead they pointed to their so-called “‘prelitigation’
responses to the revised ordinances (before and after they were passed), which
include[d] a $15,000 study on the impact of the revised ordinances and lobbying
‘to get the City to back down on the Revised Ordinances.’” 25 They noted that
“[t]he HBA’s vice president of public policy also testified that she had spent
significant time on the revised ordinances, which she could have spent on other
matters.” 26 However, we were unpersuaded:
Plaintiffs have not explained how the activities described above,
which basically boil down to examining and communicating about
developments in local zoning and subdivision ordinances, differ
from the HBA’s routine lobbying activities. Furthermore, Plaintiffs
have not identified any specific projects that the HBA had to put
on hold or otherwise curtail in order to respond to the revised
City of Kyle, 626 F.3d at 236.
Id.
24 Id.
25 Id. at 238.
26 Id.
22
23

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ordinances. Plaintiffs have only conjectured that the resources
that the HBA had devoted to the revised ordinances could have
been spent on other unspecified HBA activities. In short, Plaintiffs
have not demonstrated that the diversion of resources here
concretely and “perceptibly impaired” the HBA’s ability to carry
out its purpose. At most, they have established “simply a setback
to the organization’s abstract social interests.” Thus, there is no
injury in fact, and consequently, we must dismiss this case for lack
of standing. 27
Texas argues that here, too, OCA’s claimed injury is nothing more than
“examining and communicating about developments” in the law, and that OCA
has not “identified any specific projects that [it] had to put on hold or otherwise
curtail in order to respond” to the challenged law. 28 The district court
disagreed, and so do we.
The City of Kyle plaintiffs were dedicated lobbying groups who claimed
their lobbying and litigation-related expenses as their injury. It is fundamental
that no plaintiff may claim as injury the expense of preparing for litigation, for
then the injury-in-fact requirement would pose no barrier. The key fact in City
of Kyle was that every claimed “injury” either was undertaken to prepare for
litigation (such as the commissioning of a $15,000 study on the impact of the
ordinances—a study that the plaintiffs then relied on at trial to demonstrate
disparate impact) or was no different from the plaintiffs’ daily operations (such
as the vice president’s spending time reviewing ordinances).
Here, by contrast, OCA is not a lobbying group. It went out of its way to
counteract the effect of Texas’s allegedly unlawful voter-interpreter

27
28

Id. at 238–39 (citations omitted).
See id.

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restriction—not with a view toward litigation, but toward mitigating its realworld impact on OCA’s members and the public. For instance, it undertook to
educate voters about Texas’s assistor-versus-interpreter distinction to reduce
the chance that other voters would be denied their choice of interpreter in the
way that Das was—an undertaking that consumed its time and resources in a
way they would not have been spent absent the Texas law. Hence, the Texas
statutes at issue “perceptibly impaired” OCA’s ability to “get out the vote”
among its members. 29
Texas replies that the City of Kyle plaintiffs expressly acknowledged that
they could not claim litigation expenses as injury, but instead pointed to their
“prelitigation” expenses. Thus, Texas argues, those injuries too were unrelated
to litigation yet still held insufficient. But that does not follow. Every
qualifying injury-in-fact will necessarily occur “prelitigation,” and an expense
can be incurred before litigation but still be related to the future litigation. The
bar against claiming litigation expenses as injury is not one of temporal
relation, but one of substantive relation. In City of Kyle, the expenses occurred
prelitigation but were related to litigation. Here, the expenses occurred
prelitigation and are unrelated to litigation. That is the critical distinction.
To be sure, OCA’s injury was not large. But the injury alleged as an
Article III injury-in-fact need not be substantial; “it need not measure more
than an ‘identifiable trifle.’” 30 This is because “the injury in fact requirement
under Article III is qualitative, not quantitative, in nature.” 31 Our remark in

See Havens Realty, 455 U.S. at 379 (holding that a housing counselling service’s
“ability to provide counselling and referral services for low- and moderate-income
homeseekers” was “perceptibly impaired” by the defendant’s allegedly unlawful practices, so
“there [could] be no question that [it] suffered injury in fact”).
30 Fowler, 178 F.3d at 358 (quoting United States v. Students Challenging Regulatory
Agency Procedures, 412 U.S. 669, 689 n.14 (1973)).
31 Id. at 357–58.
29

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City of Kyle that those plaintiffs could have established standing by
“identif[ying] any specific projects that the HBA had to put on hold or otherwise
curtail in order to respond to the revised ordinances” 32 was not a heightening
of the Lujan standard, but an example of how to satisfy it by pointing to a nonlitigation-related expense. Indeed, the Supreme Court has commanded that, in
determining whether an organization has organizational standing, “we
conduct the same inquiry as in the case of an individual.” 33 So to the extent
that Texas would read City of Kyle as imposing a higher burden on
organizations seeking to establish standing, we must disagree. We rather
agree with the district court that OCA has satisfied its burden under Lujan to
show an injury-in-fact.
2
Texas further contests the second and third elements of the Lujan
standing test, arguing that any injury suffered by OCA did not result from the
Texas Election Code, and therefore is not fairly “traceable to” or “redressable
by” the State and the Secretary of State. Das’s being denied the right to have
her son interpret, the argument goes, was the result of a misunderstanding of
Texas law by Williamson County election officials, not the result of § 61.033,
so those county officials are the only ones who can redress the injury.
That circular argument misses the mark. First, it is not clear to us what
misunderstanding Williamson County officials had. Their forbidding Das’s son
from serving as an interpreter because he was not registered to vote in
Williamson County appears to be a straightforward application of § 61.033.
More importantly, the argument conflates the merits of the suit with the
plaintiff’s standing to bring it. OCA’s challenge, if successful, means that

32
33

City of Kyle, 626 F.3d at 238.
Havens Realty, 455 U.S. at 378.

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§ 61.033 is facially invalid. Texas cannot defeat standing by arguing that the
statute is facially valid, just misapplied by county officials—a merits question
that we may reach only when satisfied that OCA has standing. The facial
invalidity of a Texas election statute is, without question, fairly traceable to
and redressable by the State itself and its Secretary of State, who serves as the
“chief election officer of the state.” 34
Okpalobi v. Foster is no help to Texas. There, a doctor, several health
care clinics, other physicians, individuals, and businesses who performed
abortions in Louisiana challenged the constitutionality of a Louisiana tort law
that imposed unlimited liability on doctors for any damage caused by the
abortion procedure. 35 They claimed that the law constituted an “undue burden”
on a woman’s right to obtain an abortion under Casey, 36 naming as defendants
the governor and attorney general of Louisiana. 37 A majority of the en banc
court held that the named defendants were “without any power to enforce the
complained-of statute,” so the causal connection prong of the Lujan standing
test was unsatisfied. 38 Further, the redressability requirement was unmet
because under the tort law in question, “no state official has any duty or ability
to do anything.” 39 In sum:
[T]he injury alleged by the plaintiffs is not, and cannot possibly
be, caused by the defendants—that is, these defendants will not
file and prosecute a cause of action under Act 825 against these
plaintiffs; and that their injury cannot be redressed by these
defendants—that is, these defendants cannot prevent purely

Tex. Elec. Code § 31.001(a).
Okpalobi v. Foster, 244 F.3d 405, 409 (5th Cir. 2001) (en banc).
36 Id. at 410 (citing Planned Parenthood v. Casey, 505 U.S. 833 (1992)).
37 Id. at 409.
38 Id. at 426.
39 Id. at 427 (emphasis in original).
34
35

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private litigants from filing and prosecuting a cause of action
under Act 825 and cannot prevent the courts of Louisiana from
processing and hearing these private tort cases. 40
The statute at issue here creates no private right of action. By its own terms,
it applies to every election held in the state of Texas, 41 and unlike in Okpalobi,
where the defendants had no “enforcement connection with the challenged
statute,” 42 the Texas Secretary of State is the “chief election officer of the
state” 43 and is instructed by statute to “obtain and maintain uniformity in the
application, operation, and interpretation of this code and of the election laws
outside this code.” 44 We are satisfied that OCA has met its burden under Lujan
to show that its injury is fairly traceable to and redressable by the defendants.
B
Texas also raises the defense of state sovereign immunity, arguing that
OCA has not complied with the strictures of the Ex parte Young exception to
sovereign immunity because the named state official has no connection with,
and is not “threaten[ing] and [] about to commence proceedings” to enforce the
invalid act. 45
Sovereign immunity has no role to play here. Importantly, the parties
agree that when Mallika Das passed away, her § 1983 claim for damages
vanished. The only claim remaining in this suit is OCA’s for declaratory and
injunctive relief under the VRA. The VRA, which Congress passed pursuant to
its Fifteenth Amendment enforcement power, validly abrogated state

Id.
Tex. Elec. Code § 1.002(a).
42 Okpalobi, 244 F.3d at 427 n.35.
43 Tex. Elec. Code § 31.001(a).
44 Id. § 31.003.
45 209 U.S. 123, 155–56 (1908).
40
41

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sovereign immunity. 46 The immunity from suit that Texas and its officials
otherwise enjoy in federal court offers it no shield here.
III
Satisfied that federal jurisdiction over this case is proper, we turn to its
merits. At bottom, the question presented by this case is how broadly to read
the term “to vote” in Section 208 of the VRA. Texas argues that the term refers
only to the literal act of marking the ballot, so the right to “assistance by a
person of the voter’s choice” referenced in the section applies only for that
purpose. It says its Election Code’s assistor provisions provide its voters with
the full scope of assistance guaranteed by Section 208 by offering nearunfettered choice of assistance inside the ballot box. The supplemental
interpreter right, which extends beyond the ballot box, Texas argues, is beyond
Section 208’s coverage, meaning that the § 61.033 restriction on voter choice
cannot be in conflict.
OCA reads “to vote” in Section 208 more broadly. It argues that the term
refers to more aspects of the voting process than the mere act of marking the
ballot. Examples it offers are navigating the polling location and
communicating with election officials. Under OCA’s reading, Section 208
guarantees to voters to right to choose any person they want, subject only to
employment-related limitations, to assist them throughout the voting process;
hence, Tex. Elec. Code § 61.033 imposes a limitation on voter choice
unsupported by, and therefore in conflict with, Section 208.
The unambiguous language of the VRA resolves the parties’
disagreement. The word “vote” is expressly defined in 52 U.S.C. § 10310(c)(1)
(formerly 42 U.S.C. § 1973l):

46

Mixon v. State of Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999).

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The terms “vote” or “voting” shall include all action necessary to
make a vote effective in any primary, special, or general election,
including, but not limited to, registration, listing pursuant to this
chapter, or other action required by law prerequisite to voting,
casting a ballot, and having such ballot counted properly and
included in the appropriate totals of votes cast with respect to
candidates for public or party office and propositions for which
votes are received in an election.
“To vote,” therefore, plainly contemplates more than the mechanical act of
filling out the ballot sheet. It includes steps in the voting process before
entering the ballot box, “registration,” and it includes steps in the voting
process after leaving the ballot box, “having such ballot counted properly.”
Indeed, the definition lists “casting a ballot” as only one example in a
nonexhaustive list of actions that qualify as voting.
When confronted with this definition, Texas responds only that the plain
language of its assistor provisions track the plain language of Section 208.
Even so, the problem remains that the Texas provisions expressly limit the
right to the act of casting a ballot. It should go without saying that a state
cannot restrict this federally guaranteed right by enacting a statute tracking
its language, then defining terms more restrictively than as federally defined.
We must conclude that the limitation on voter choice expressed in Tex.
Elec. Code § 61.033 impermissibly narrows the right guaranteed by Section
208 of the VRA.
IV
Finally, Texas urges that the injunction entered by the district court is
both overbroad and vague. We agree that the district court’s injunction was not
appropriately confined and must be vacated.
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From beginning to end, OCA’s challenge has been to Tex. Elec. Code
§ 61.033. OCA’s live complaint seeks a declaration that only that section
violates the VRA, and its motion for summary judgment sought a declaration
that only that section violated the VRA. The district court’s order on summary
judgment went beyond the engaged challenge, reading a different section in a
way that rendered it invalid. It said: “[T]he Interpretation Provisions, insofar
as they allow an interpreter only if the officer does not speak the same language
as the voter . . ., flatly contradict Section 208.” The referenced provision is Tex.
Elec. Code § 61.032, which states: “If an election officer who attempts to
communicate with a voter does not understand the language used by the voter,
the voter may communicate through an interpreter selected by the voter.” A
reading that this means that an election officer’s being unable to communicate
with a voter is a precondition to the voter’s right to select an interpreter was
never urged.
After the parties submitted memoranda debating the propriety of a
detailed permanent injunction, the district court sua sponte entered a
“clarifying order,” explaining that it found “Section 61.032 to be inconsistent
with the Voting Rights Act to the extent it precludes a limited-English voter
from selecting an interpreter if an election officer who attempts to
communicate with the voter understands the language spoken by the voter.”
That same order, unrequested by any party, further stated: “To the extent the
provisions of the Texas Election Code are inconsistent with the Voting Rights
Act, the Court ENJOINS the Defendants, their employees, agents, and
successors in office, and all persons acting in concert with them, from
enforcement of those provisions.”
At oral argument in this case, we asked OCA’s counsel whether it agreed
with the district court’s reading of Tex. Elec. Code § 61.032 to mean that the
voter can select an interpreter only if an election official cannot interpret.
17

Case: 16-51126

Document: 00514119102

Page: 18

Date Filed: 08/16/2017

No. 16-51126
Counsel replied: “I don’t believe that’s the case. It’s just the requirement that
they be a registered voter in the same county.” 47
The district court broadly enjoined Texas from enforcing any provision
of its Election Code to the extent it is inconsistent with the VRA. Yet, an
injunction must be “narrowly tailor[ed] . . . to remedy the specific action which
gives rise to the order.” 48 The injunction here exceeds the scope of the parties’
presentation, which was limited to Tex. Elec. Code § 61.033. 49 And more to the
point, it exceeds the scope of the OCA’s harm. 50 On remand, the district court
may elect to craft a new injunction. As the record indicates, Texas has already
undergone substantial effort to comply with the district court’s declaration,
here affirmed, that § 61.033 is invalid. We leave that circumstance to the able
hand of the trial court, far closer than we to the case.
V
The injunction entered by the district court is vacated, and this case is
remanded for the entry of a new injunction, if appropriate, consistent with this
opinion. In all other respects, the judgment of the district court is affirmed.

Oral Argument Recording at 22:30–22:50.
John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004).
49 See Scott v. Schedler, 826 F.3d 207, 214 (5th Cir. 2016) (“We merely remind the
district court that its injunction may not encompass more conduct than was requested or
exceed the legal basis of the lawsuit.”); Lion Health Servs. Inc. v. Sebelius, 635 F.3d 693, 703
(5th Cir. 2011) (“As a general principle, ‘injunctive relief should be no more burdensome to
the defendant than necessary to provide complete relief to the plaintiffs.’” (quoting Califano
v. Yamasaki, 442 U.S. 628, 702 (1979))).
50 See Meltzer v. Bd. of Pub. Instruction of Orange County, Fla., 548 F.2d 559, 568 (5th
Cir. 1977) (“[W]e are guided by the established principle of equity that ‘in considering
whether to grant injunctive relief a court should impose upon a defendant no restriction
greater than necessary to protect the plaintiff from the injury of which he complains.’”), aff’d
in part and rev’d in part en banc, 577 F.2d 311 (5th Cir. 1978).
47
48

18