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

Filing 67

ORDER DENYING 61 Motion for Permanent Injunction. Signed by Judge Robert Pitman. (ml)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
OCA GREATER HOUSTON, et al.,
Plaintiffs,
v.
STATE OF TEXAS, et al.,

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1:15-cv-679-RP

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Defendants.

ORDER
Before the Court are Plaintiff OCA-Greater Houston’s Motion for Permanent Injunction
(Dkt. 61) and Defendants’ Response (Dkt. 62). These filings were made at the Court’s request in
order to assist the Court in rendering appropriate relief pursuant to its August 12, 2016 order
granting Plaintiff’s Motion for Summary Judgment and denying Defendants’ Motion for Summary
Judgment. After reviewing the filings, relevant case law, and the record in this case, the Court issues
the following order.
I.

BACKGROUND1

This case was initially filed by the late Mallika Das, a registered voter in Williamson County,
Texas, and OCA-Greater Houston, a non-profit organization dedicated to advancing the social,
political, and economic well-being of Asian Pacific Americans, against Defendants, the State of
Texas and Secretary of State Carlos Cascos in his official capacity (“Defendants”). 2 Ms. Das and
OCA-Greater Houston sought to challenge Defendants’ enforcement of certain provisions of the
Texas Election Code (“TEC”) that govern the assistance offered to limited-English proficient
This order provides a brief summary of the background and relevant facts for the purposes of discussing Plaintiff’s
motion for a permanent injunction. A more complete discussion of the relevant background and facts can be found in
the Court’s August 12, 2016 order, which granted Plaintiff’s motion for summary judgment. (See Order, Aug. 12, 2016,
Dkt. 60.)
2 Plaintiffs also named Williamson County and the Williamson County Elections Department in their suit. After a
settlement, the Court dismissed with prejudice Plaintiffs’ claims against these defendants.
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voters. These provisions are included in two separate chapters of the TEC. Tex. Elec. Code
§ 61.031–.036, 64.031–.037. Chapter 61, which includes the “Interpreter Provisions,” allows a voter
to select an “interpreter” of his or her choice “[i]f an election officer who attempts to communicate
with [the] voter does not understand the language used by the voter.” Id. § 61.032. “To be eligible to
serve as in interpreter,” however, “a person must be a registered voter of the county in which the
voter needing the interpreter resides.” Id. § 61.033. Chapter 64, which includes the “Assistance
Provisions,” allows a voter who is unable “to read the language in which the ballot is written” to use
an assistor of the voter’s choice, “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.” Id. § 64.031(1), 64.032(c).
However, a voter may only use the assistor of his or her choice “while in the presence of the voter’s
ballot or carrier envelope.” Id. § 64.0321.
Plaintiffs argued that these provisions, which are promulgated and enforced by Defendants,
violate Section 208 of the Voting Rights Act (“VRA”), which provides that:
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.
52 U.S.C.A. § 10508 (formerly 42 U.S.C.A. § 1973aa-6).
In support of that argument, Plaintiffs highlighted Ms. Das’s attempt to vote in a 2014
election. When Ms. Das went to vote, she brought her son to assist her because she is limitedEnglish proficient and had found it difficult to vote in the past. After speaking briefly with Ms. Das
and her son, Williamson County poll officials refused to allow Ms. Das’s son to translate for her
because he was not registered to vote in Williamson County. Ms. Das proceeded to vote without her
son’s assistance.
Although Ms. Das was not a member of OCA-Greater Houston, her experience is
demonstrative of the experience the organization seeks to prevent their members—many of whom

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are language minorities—from having. One of the organization’s primary missions is promoting
civic participation and civic education. In order to effectuate this mission, it undertakes a “Get out
the Vote” initiative, which encourages voting and educates members on how to vote. OCA-Greater
Houston argues that this effort has been hindered by the Assistance and Interpreter Provisions of
Texas law, in particular, because those provisions requires the organization’s employees and
volunteers to spend additional time explaining what words a limited-English proficient voter must
use to ensure they have assistance in voting.
Ms. Das passed away prior to the Court’s ruling on summary judgment; thus the case
proceeded based solely on OCA-Greater Houston’s claims. After an evidentiary hearing on standing,
the Court granted summary judgment in favor of OCA-Greater Houston on August 12, 2016. The
Court explained that Section 208 operates as a negative obligation on states, requiring that they not
limit voters’ rights to assistance by a person of their choice. (Order, Aug. 12, 2016, at 4.) The Court
concluded that the Assistance and Interpreter Provisions of the TEC did just that. It explained:
The Assistance Provisions, insofar as they honor the VRA’s requirement of voter choice
only at the ballot box, are insufficient to implement Section 208. And the Interpretation
Provisions, insofar as they allow an interpreter only if the officer does not speak the
same language as the voter and restrict voter choice of interpreter by arbitrarily requiring
the interpreter to be registered to vote in the county where assistance is being sought,
flatly contradict Section 208.
(Order, Aug. 12, 2016, at 19.) It further enjoined Defendants, “their employees, agents, and successors in
office, and all persons acting in concert with them, from engaging in any practice that denies the rights
secured by Section 208 of the Voting Rights Act.” (Id. at 20.) In addition, the Court ordered that the
Plaintiff file briefing regarding any additional remedies that may be necessary to timely effect necessary
relief and gave the Defendants an opportunity to respond.
Plaintiff filed a motion for permanent injunction on August 19, 2016. (Pl.’s Mot. Permanent Inj.,
Dkt. 61.) Attached to Plaintiff’s motion was a proposed order that would require the State of Texas and
the Secretary of State’s Office to “implement a Remedial Plan.” (Pl.’s Proposed Order, Dkt. 61-2 at 1.)

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Plaintiff’s proposed plan would require Defendants to meet ten various obligations. In short, Defendants
would be required to (1) revise and re-publish the 2016 Handbook for Elections Judges and Clerks,
including making four specific changes, (2) revise and re-publish the 2015 Poll Watcher’s Guide and
related materials, including making one specific change, (3) distribute a notice to all county election
officials clarifying the requirements of state and federal law based on this Court’s order and publish that
notice on the Secretary of State’s website, (4) discuss the assistance voters are entitled to under the VRA
at all election law seminars for the next five years, (5) revise the language on the Secretary of State’s
“Voters with Special Needs” webpage to clarify the assistance voters are entitled to, (6) revise the
language on the Secretary of State’s “Who, What, Where, When, How” webpage to clarify the assistance
voters are entitled to, (7) implement similar revisions with respect to any other documents that may
improperly explain the assistance voters are entitled to, (8) implement a procedure for obtaining,
publishing, investigating, and acting on voter complaints related to enforcement of the TEC in a way
that restricts voter choice in a manner inconsistent with the VRA, (9) publish and archive the order
outlining the injunctive relief ultimately granted in this case on the Secretary of State’s website, and
(10) maintain written records of all actions taken pursuant to the order, to be produced to the Court and
Plaintiff. (Id.)
Defendants filed a response on August 26, 2016. (Defs.’ Resp. to Pl.’s Mot. Permanent Inj., Dkt.
62.) Defendants’ argued that Plaintiff’s motion should not be granted for three primary reasons. First,
Defendants asserted that they were already taking steps to comply with the Court’s summary judgment
order. (Id. at 2–5.) For example, Defendants supplied to the Court an email, sent to 4,800 election
officials, informing the officials of the Court’s August 12, 2016, order. (Ingram Decl. ¶ 3, Dkt. 62-1.)
Second, Defendants argued that additional remedies are unnecessary because they either go too far in
instructing the Secretary of State on how to comply with his statutory duties, or impose requirements
that create new responsibilities for the Secretary of State. (Defs.’ Resp. to Pl.’s Mot. Permanent Inj., Dkt.
62. at 5–8.) Third, Defendants argued that Plaintiff’s proposed injunctive relief was too broad because

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the Court’s initial summary judgment order only invalidated TEC Section 61.032, the provision that
restricted an interpreter to a person registered to vote in the voter’s county of residence, and left the rest
of the TEC in full effect. (Id. at 8.)
After reviewing Defendants’ response, and particularly Defendants’ third argument, the Court
issued a clarification order on August 30, 2016. (Order, Aug. 30, 2016, Dkt. 66, at 1.) That order
explained that three sections of the TEC were affected by the Court’s initial summary judgment order:
Sections 61.032, 61.033, and 64.0321. (Id. at 3.) Specifically, the Court found:
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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.
Section 61.033 to be wholly inconsistent with the Voting Rights Act because it
restricts a limited-English voter’s choice of interpreter to those persons registered to
vote in the county in which the voter needing the interpreter resides.
Section 64.0321 to be inconsistent with the Voting Rights Act to the extent it
restricts a voter from obtaining assistance when at a polling location, but outside the
presence of the voter’s ballot or carrier envelope.

(Id.) The Court reiterated its initial injunction, enjoining Defendants from enforcing the TEC to the
extent that it is inconsistent with the VRA. (Id.)
In its clarification order, the Court also stated that it would address Plaintiff’s motion for a
permanent injunction in a later order. The Court will address Plaintiff’s motion now.

II.

PERMANENT INJUNCTION STANDARD

A plaintiff seeking a permanent injunction must satisfy a four-factor test to demonstrate it is
entitled to such relief. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010). The “plaintiff
must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law,
such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.” Id. (quoting eBay Inc.
v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). Further, in accordance with Federal Rule of Civil

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Procedure 65(d)(1), an order granting a permanent injunction must “(A) state the reasons why it
issued; (B) state its terms specifically; and (C) describe in reasonable detail . . . the act or acts
restrained or required.” Scott v. Schedler, 826 F.3d 207, 208 (5th Cir. 2016) (quoting Fed. R. Civ. P.
65(d)(1)). According to the Fifth Circuit, this means the injunction must not be vague or overbroad.
Id. “[A]n injunction is overly vague if it fails to satisfy the specificity requirements set out in Rule
65(d)(1), and it is overbroad if it is not ‘narrowly tailor[ed] . . . to remedy the specific action which
gives rise to the order’ as determined by the substantive law at issue.” Id. (quoting Doe v. Veneman,
380 F.3d 807, 813 (5th Cir. 2004)).
The decision to grant or deny permanent injunctive relief is left to the equitable discretion of
the district court. eBay, 547 U.S. at 391, 393. “Even when a movant establishes the four
requirements, the decision to grant or deny a permanent injunction remains in the court’s
discretion.” Nat’l Solid Wastes Mgmt. Ass’n v. City of Dallas, 903 F. Supp. 2d 446, 459 (N.D. Tex. 2012)
(citing Lemon v. Kurtzman, 411 U.S. 192, 200–01 (1973)).
III.

ANALYSIS

Plaintiff argues it is entitled to a permanent injunction under the four-factor test outlined by
the Supreme Court. This Court will first consider whether Plaintiff is entitled to additional injunctive
relief under the four-factor test; if so, the Court will consider Plaintiff’s proposed Remedial Plan.
First, Plaintiff argues that irreparable harm is presumed in a case involving the impairment of
fundamental constitutional or civil rights, such as the right to vote. Plaintiff notes that even in the
absence of such a presumption, one of its core missions—promoting civic participation and civic
education—is hindered by Defendants’ enforcement of the TEC provisions at issue, costing Plaintiff
additional time and resources to reach voters.
The Court agrees with Plaintiff that this case involves the critical and important right of
voting, which Congress has declared “fundamental.” 52 U.S.C. § 20501 (“Congress finds that . . . the

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right of citizens of the United States to vote is a fundamental right; . . . it is the duty of the Federal,
State, and local governments to promote the exercise of that right.”). Plaintiff is also correct that
some courts have concluded that the involvement of such a fundamental right creates a presumption
of irreparable injury. See, e.g., Cardona v. Oakland Unified Sch. Dist., 785 F. Supp. 837, 840 (N.D. Cal.
1992) (“Abridgement or dilution of a right so fundamental as the right to vote constitutes irreparable
injury.”). However, the Court finds that it need not rely on that presumption because it concludes
that Plaintiff has demonstrated irreparable injury.
“An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Deerfield
Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). Further, the injury must be
demonstrated by “specific facts.” ITT Educ. Servs., Inc. v. Arce, 533 F.3d 342, 347 (5th Cir. 2008). This
Court has already discussed the specific facts that demonstrate Plaintiff’s injury. (Order, Aug. 16,
2016, Dkt. 60, at 11–15.) Namely, Plaintiff’s efforts to promote civic participation and voting among
Asian Americans were hindered because it had to spend additional time clarifying voters’
misunderstandings and educating voters about how to communicate with poll workers. (Id. at 13.)
Further, despite these efforts, Plaintiff was aware of community members who were unable to vote
because of the TEC’s Assistance and Interpreter Provisions. (Id. at 11.) Without this hindrance,
Plaintiff would have been able to reach more potential voters and likely motivate more community
members to vote. (Id. at 14.)
This injury cannot be undone with monetary relief. As Plaintiff explains in addressing the
second factor of the four-factor test, “[i]n the same way that it is not possible to pay someone for
having been denied the right to vote, there is also no compensatory price for interfering with a nonprofit organization’s efforts to promote this fundamental right.” (Pl.’s Mot. Permanent Inj., Dkt. 61,

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at 5.) The Court agrees and finds that Plaintiff has suffered an irreparable injury that cannot be
adequately remedied by monetary relief. 3
Finally, the Court finds that Plaintiff is entitled to an injunction based on the remaining two
factors. 4 The balance of hardships weighs in favor of an equitable remedy because the injury caused
to Defendants by an injunction is minimal—Plaintiff’s proposed Remedial Plan primarily requires
modifying some of the voter education and election law enforcement materials Defendants already
provide to election officials, poll watchers, and voters. Further, the public interest would
undoubtedly be best served by an injunction, which would ensure that all Texas voters receive the
right to assistance in voting provided by Section 208 of the VRA. Cf. Texas Democratic Party v.
Benkiser, 459 F.3d 582, 595 (5th Cir. 2006) (“It is beyond dispute that the injunction serves the public
interest in that it enforces the correct and constitutional application of Texas’s duly-enacted election
laws.”).
Having concluded that Plaintiff is entitled to a permanent injunction, the Court will now
consider whether Plaintiff’s requested relief is appropriate in this case. Defendants argue that no
additional relief is necessary because the Secretary of State is complying with this Court’s August 12,
2016 order and is working to update its guidance and training materials accordingly.
A.

Compliance Efforts by Defendants

Defendants have already sent an email to more than 4,800 election officials informing them
of the Court’s August 12, 2016 order and instructing them as to how to comply with that order.

Although the Court, in its order granting Plaintiff’s motion for summary judgment, focused in large part on Plaintiff’s
economic injury, it did not conclude that Plaintiff’s injury was “entirely economic.” (See Defs.’ Resp. to Pl.’s Mot.
Permanent Inj., Dkt. 62, at 2 n.1.) Instead, it explained that the injury requirement for Article III is qualitative, not
quantitative. (Order, Aug. 12, 2016, at 9 (citing Ass’n of Comty. Orgs. for Reform Now v. Fowler, 178 F. 3d 350, 357–58 (5th
Cir. 1999).) While the Court, to demonstrate the concrete nature of Plaintiff’s injury, also quantified that injury (id. at 13–
14), it ultimately concluded that “[t]he Assistance and Interpretation Provisions [in the TEC] perceptibly impair OCA–
Greater Houston’s ability to provide education and assistance to Asian Pacific American voters,” (id. at 20), a qualitative
injury that cannot be remedied with monetary relief.
4 Defendants did not challenge Plaintiff’s entitlement to a permanent injunction based on the final two factors. (Defs.’
Resp. to Pl.’s Mot. Permanent Inj., Dkt. 62, at 2.)
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Defendants further state their intention to post the Court’s order on the Secretary of State’s website
and to revise and update other handbooks and training materials provided by the State, including the
Poll Watcher’s Guide, the Election Inspector Handbook, and the Qualifying Voters Handbook.
Defendants also intend to update Secretary of State websites, including the “Voters with Special
Needs” webpage and the “Who, What, Where, When, How” webpage on the Secretary of State’s “Vote
Texas” website, and a pamphlet regarding voters with special needs linked to on the Secretary of State’s
main website.
While the Court concludes that some of the specific revisions and updates proposed by
Defendants inaccurately reflect the Court’s August 12, 2016 ruling, it concludes that any
misunderstanding by Defendants was in good faith. Based on that understanding, the Court presumes
Defendants will follow through with their stated intentions to modify their websites, handbooks, and
guidance in the places indicated after they have altered their proposed revisions to comply with this
Court’s August 30, 2016 order.
B.

Plaintiff’s Remedial Plan

With Defendants’ compliance efforts and the existing injunction in mind, the Court will assess
whether the additional injunctive relief outlined in Plaintiff’s proposed Remedial Plan is necessary to
ensure Defendants do not enforce the TEC to the extent this Court has found it to be inconsistent with
Section 208 of the VRA. As the Court explained previously, Plaintiff’s proposed Remedial Plan includes
requiring that Defendants: (1) revise and re-publish the 2016 Handbook for Elections Judges and Clerks,
(2) revise and re-publish the 2015 Poll Watcher’s Guide and related materials, (3) distribute a notice to all
county election officials clarifying the requirements of state and federal law based on this Court’s order
and publish that notice on the Secretary of State’s website, (4) discuss the assistance voters are entitled to
under the VRA at all election law seminars for the next five years, (5) revise the language on the
Secretary of State’s “Voters with Special Needs” webpage to clarify the assistance voters are entitled to,
(6) revise the language on the Secretary of State’s “Who, What, Where, When, How” webpage to clarify

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the assistance voters are entitled to, (7) implement similar revisions with respect to any other documents
that may improperly explain the assistance voters are entitled to, (8) implement a procedure for
obtaining, publishing, investigating, and acting on voter complaints related to enforcement of the TEC in
a way that restricts voter choice in a manner inconsistent with the VRA, (9) publish and archive the
order outlining the injunctive relief ultimately granted in this case on the Secretary of State’s website, and
(10) maintain written records of all actions taken pursuant to the order, to be produced to the Court and
Plaintiff.
The Court is persuaded by Defendants’ argument that Plaintiff’s requested relief in parts (1), (2),
(3), (5), (6), (7), and (9) is effectively mooted by Defendants’ compliance efforts, which overlap
substantially with Plaintiff’s proposals. To the extent Plaintiff and Defendants’ specific proposed
revisions in these parts conflict, that conflict relates to the parties’ disagreement over the scope of this
Court’s August 12, 2016 order. As the Court already stated, the Court presumes Defendants will alter
their proposed revisions to the extent necessary to comply with this Court’s order issued on August 30,
2016. Thus, the Court need not order Defendants to adopt specific revisions, but rather feels that
Defendants can use whatever language they choose in order to effectuate the Court’s injunction, as
clarified by the August 30, 2016 order, and comply with their statutory obligations.
Parts (4), (8), and (10) of Plaintiff’s Remedial Plan are not mooted by Defendants’ planned
compliance efforts. The remaining proposals by Plaintiff are (4) to order Defendants to discuss the
assistance voters are entitled to under the VRA at all election law seminars for the next five years, (8) to
implement a procedure for obtaining, publishing, investigating, and acting on voter complaints related to
enforcement of the assistance provision under the VRA, and (10) to maintain written records of all
actions taken pursuant to the Courts August 16, 2016 order, to be produced to the Court and Plaintiff.
The Court deems this additional proposed injunctive relief inappropriate in this case. As the
Court stated in its August 12, 2016 order, Section 208 does not impose an affirmative obligation on
states, but rather operates as a negative obligation requiring that states not limit voters’ right to assistance

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by a person of their choice. (Order, Aug. 12, 2016, Dkt. 60, at 4.) The initial remedial measures proposed
by Plaintiff and largely adopted by Defendants ensure the state’s negative obligations are met; without
taking some action to inform election officials, poll watchers, and voters of the invalidity of certain
provisions of the TEC, these provisions would continue to stand as a barrier to voters and to
organizations seeking to encourage civic participation like Plaintiff’s. Once that barrier has been
removed, however, the Court sees no reason, at this point in time, to create affirmative obligations for
Defendants in order to ensure compliance with Section 208 of the VRA.
IV.

CONCLUSION

In contemplation of the additional modifications the Court anticipates Defendants will make
to their planned compliance efforts in accordance with the Court’s August 30, 2016 order, the Court
concludes that while Plaintiff is entitled to injunctive relief, the Court need not issue additional
injunctive relief at this time. Thus, Plaintiff’s Motion for Permanent Injunction (Dkt. 61) is
DENIED without prejudice.
SIGNED on September 2, 2016.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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