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

Filing 84

ORDER REVISING Injunction. Signed by Judge Robert Pitman. (lt)

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

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1:15-CV-679-RP

ORDER
On August 12, 2016, the Court entered an order granting summary judgment against the
State of Texas and Carlos Cascos, who was sued in his official capacity as the Texas Secretary of
State (collectively, “Defendants”). (August 12th Order, Dkt. 60). The Court then invited the parties
to file motions advising the Court of their positions on the appropriate relief in this case.
On August 30, 2016, after considering the parties’ filings, this Court entered another order
clarifying the relief described in its August 12th Order. (August 30th Order, Dkt. 66). In that order,
the Court found that Texas Election Code (“the Election Code” or “TEC”) Sections 61.032, 1
61.033, 2 and 64.0321 3 were inconsistent with Section 208 of the VRA (“Section 208”). (Id. at 2–3).
The Court then enjoined “the Defendants, their employees, agents, and successors in office, and all
persons acting in concert with them, from enforcement of those provisions.” (Id. at 3).
Defendants appealed the Court’s grant of summary judgment and its injunction. See OCAGreater Houston v. Texas, 867 F.3d 604, 607 (5th Cir. 2017). On August 16, 2017, the United States
“To 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.” TEX. ELEC. CODE § 61.032.

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“To 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.” TEX. ELEC. CODE § 61.033.

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“For purposes of this subchapter and Sections 85.035 and 86.010, assisting a voter includes the following 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: (1)
reading the ballot to the voter; (2) directing the voter to read the ballot; (3) marking the voter’s ballot; or (4) directing the
voter to mark the ballot.” TEX. ELEC. CODE § 64.0321.

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Court of Appeals for the Fifth Circuit (“Court of Appeals”) upheld the Court’s grant of summary
judgment but found the injunction to be overbroad. Id. at 615–16. It then vacated the injunction and
remanded the case to this Court for entry of a new remedy. Id.
The Court of Appeals found that the injunction “exceeds the scope of the parties’
presentation, which was limited to Tex. Elec. Code. § 61.033.” Id. Specifically, the court found that
the parties never argued that Section 61.032 violated the VRA and that Plaintiff The Organization of
Chinese Americans-Greater Houston’s (“OCA”) complaint only seeks a declaration that Section
61.033 violates the VRA. Id. at 615. The Court of Appeals also found that the injunction “exceeds
the scope of the OCA’s harm.” Id. at 616. In light of these findings, the Court will enter a narrower
injunction tailored more closely to the harm articulated and the relief sought by OCA in its pleadings
and motion for summary judgment.
I. DISCUSSION
In crafting a narrower injunction, the Court is mindful of the Court of Appeals’ admonition
to craft an injunction limited to the parties’ presentations and the scope of OCA’s harm. Id. at 616,
616 n.49, 616 n.50 (citing 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.”) and Meltzer v. Bd. of Pub. Instruction of Orange Cty., Fla., 548 F.2d 559, 568
(5th Cir. 1977), aff’d in part and rev’d in part en banc 577 F.2d 311 (5th Cir. 1978) (“[A] court should
impose upon a defendant no restriction greater than necessary to protect the plaintiff from the
injury of which he complains.”)). The Court is also careful not to reexamine issues of fact or law
decided on appeal absent exceptional circumstances. Ball v. LeBlanc, 881 F.3d 346, 351 (5th Cir.
2018)
From these principles, it is clear that a revised injunction ought to apply to Section 61.033
but not to Section 61.032. The Court and the Court of Appeals both found that Section 61.033 is
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inconsistent with and preempted by Section 208. (Order, Dkt. 60, at 20); OCA-Greater Houston, 867
F.3d at 615. As the Court of Appeals observed, the parties’ dispute has centrally concerned Section
61.033 throughout this litigation, and Texas’s enforcement of Section 61.033 is directly tied to
OCA’s injury. The Court’s revised injunction will therefore apply to Section 61.033. Meanwhile, the
Court does not find that any exceptional circumstances exist to justify reexamining the Court of
Appeals’ factual findings; it is therefore bound by the appellate court’s explicit finding that Section
61.032 lies outside the scope of the parties presentation and OCA’s harm. OCA-Greater Houston, 867
F.3d at 615–16. 4 The Court’s revised injunction will not apply to Section 61.032.
A. Section 64.0321
What remains is whether the Court will include Section 64.0321 in its revised injunction. The
Court appreciates that Section 61.033 was the focal point of the parties’ dispute. However, Section
64.0321 was consistently placed at issue by the parties, and the Court cannot appropriately redress
OCA’s injury without including Section 64.0321 in its injunction. For the reasons discussed below,
the Court will include Section 64.0321 in its revised injunction.
1. The Parties’ Presentation
This case turns largely on the scope of Section 208. Id. at 614 (“At bottom, the question
presented by this case is how broadly to read the term ‘to vote’ in Section 208 of the VRA.”). On
appeal, the parties addressed that legal issue from two directions: by arguing both that the Election
Code’s assistor provisions were (or were not) coextensive with Section 208 and also that the

The Court of Appeals also stated that the Court’s original injunction “exceeds the scope of the parties’ presentation,
which was limited to Tex. Elec. Code § 61.033.” OCA-Greater Houston, 867 F.3d at 616. The Court interprets that
statement to refer to Section 61.032 but not also to Section 64.0321 for several reasons. First, that statement follows a
discussion that is specific to Section 61.032 and includes factual findings relevant to that provision. Id. at 615–16.
Second, that same discussion is silent regarding Section 64.0321 and the assistor provisions in general, even though the
original injunction applied to Section 64.0321. Id. Third, for the reasons discussed in this order, the Court finds strong
support for the conclusion that the parties’ presentation of their dispute and OCA’s articulation of its injury both
warrant injunctive relief directed not only at Section 61.033 but also at Section 64.0321. Taken together, the Court
understands the Court of Appeals’ opinion to make a factual finding that the original injunction was overbroad with
respect to Section 61.032 but not to include a finding regarding Section 64.0321.

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Election Code’s interpreter provisions were (or were not) inconsistent with Section 208. See id.
(“[Texas] says its Election Code’s assistor provisions provide its voters with the full scope of
assistance guaranteed by Section 208 . . . [and that t]he supplemental interpreter right . . . is beyond
Section 208’s coverage.”).
The parties’ arguments on appeal were consistent with their approach throughout this
litigation. In its amended complaint, for example, OCA alleges that it is harmed by Defendants’
enforcement of Section 61.033, which limits a person’s choice of interpreter. Meanwhile, OCA also
alleges that Section 64.0321 is relevant law and that Defendants violated the VRA by failing to
“allow eligible voters to receive necessary assistance from any person of their choice.” (Id. ¶ 34). In
its prayer for relief, OCA asks the Court to not only declare that Section 61.033 violates the VRA,
but also to enjoin Defendants from “engaging in any act or practice that denies the rights secured by
Section 208.” (Id. at 8).
In moving to dismiss OCA’s claims, Defendants argued that Texas law comports with the
VRA because the assistor provisions—including Section 64.0321, which permits a voter to use an
assistor only in the ballot box—give voters the “help to which they are entitled under the [VRA].”
(State Defs.’ Mot. Dismiss, Dkt. 21, at 10). Defendants’ theory at that stage, as it remained through
this litigation, was that the interpreter provisions are supplemental to Section 208, and therefore that
any restrictions on interpreter eligibility do not conflict with the VRA. (Id.). In its response, OCA
argued not only that Section 61.033 is inconsistent with the VRA, but also that Defendants’
interpretation of Section 64.0321 violates the VRA because Section 208 “extends beyond the ballot
box and embraces the entire voting process.” (Pls.’ Resp. State Defs.’ Mot. Dismiss, Dkt. 24, at 6, 8).
At summary judgment, Defendants’ arguments again included the scope of the assistor
provisions. (See State Defs.’ Mot. Summ. J., Dkt. 45, at 16–18 (arguing that the assistor provisions do
“precisely” the same thing as Section 208); State Defs.’ Resp. Pls.’ Mot. Summ. J., Dkt. 48, at 6–7
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(calling the assistor provisions the “state equivalent” of Section 208)). So, too, did OCA’s arguments
in its own motion for summary judgment and in its response to Defendants’ motion. (Pls.’ Mot.
Summ. J., Dkt. 44, at 10–11 (arguing that Defendants’ interpretation of the TEC improperly restricts
a voter’s choice of assistor outside the ballot box); Pls.’ Resp. State Defs.’ Mot. Summ. J., Dkt. 51, at
14 (arguing that the assistor provisions are “insufficient to implement Section 208”)).
Finally, after the Court requested briefing on appropriate injunctive relief, OCA requested a
remedial plan that included instructing poll workers that Section 64.0321 did not limit assistance to
the ballot box. (Proposed Order, Dkt. 61-2, at 1–2). OCA also asked for revised instructions
informing poll workers that any qualified assistor could also serve as an interpreter. (Id. at 2). In light
of this record, the Court finds that the parties’ presentation of the legal issues throughout this
litigation places Section 64.0321 appropriately within the scope of injunctive relief.
2. The Scope of OCA’s Harm
Not only has Section 64.0321 been a consistent feature of the parties’ presentation of their
dispute, it also contributed to the injury suffered by every plaintiff in this action, including and
especially OCA. Section 64.0321 creates confusion for poll workers and voters about who can help a
person under Section 208 and when, depriving voters of federally protected assistance and creating
opportunity costs for OCA.
Consider, for example, the events that gave rise to this case. A poll worker asked Mallika
Das’s (“Ms. Das”) son whether he intended to act as an “assistor” or an “interpreter.” (Am. Compl.,
Dkt. 14, ¶ 25). When he responded that he intended to interpret for his mother, the poll worker
asked about his voter registration and then turned him away. (Id. ¶¶ 26–27).
Ms. Das’s son was turned away not only because the poll worker enforced Section 61.033
but also because he enforced Section 64.0321. Suppose, for example, that the poll worker did not
enforce Section 64.0321 (permitting an assistor outside the ballot box) but did enforce Section
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61.033; he might still have turned away Ms. Das’s son when he stated that he intended to “interpret”
for his mother rather than “assist” her, because only voters registered in the same county can serve
as an “interpreter.” Or suppose, on the other hand, that the poll worker enforced Section 64.0321
but ignored Section 61.033; had Ms. Das’s son said that he was there to “assist” his mother, the poll
worker could have kept him from helping her outside of the ballot box. In other words, even if only
one of either Section 61.033 or 64.0321 were in place, Ms. Das still would have encountered what
OCA describes as the “secret password” problem: only voters savvy enough to know what to call
their helper are able to enjoy the rights afforded them under Section 208. (Pls.’ Resp. State Defs.’
Mot. Dismiss, Dkt. 24, at 9).
The “secret password” problem is a central feature of OCA’s injury. In its amended
complaint, OCA alleges that it is injured by having to expend its scarce resources educating
constituents on how to navigate the rules pertaining to interpreters. (Am. Compl., Dkt. 14, ¶ 10). In
its motion for summary judgment, OCA argued that its injuries included the time and effort it must
expend educating voters on the distinctions between an “assistor” and an “interpreter,” which are
subject to different regulations. (Pls.’ Mot. Summ. J., Dkt. 44, at 17). OCA presented evidence that it
has to explain to people the need to specify that their helper is an “assistor” rather than an
“interpreter” and that the Election Code’s assistor and interpreter provisions are “difficult to explain
to prospective voters.” (Id.). On appeal, OCA again described its harm as having to spend additional
time with each voter explaining “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.’” OCA-Greater
Houston, 867 F.3d at 610. The Court of Appeals agreed that OCA’s efforts “to educate voters about
Texas’s assistor-versus-interpreter distinction” constituted a legally cognizable injury because those
efforts “consumed its time and resources in a way they would not have been spent absent the Texas
law.” Id. at 612. This resource-expenditure injury is caused by the “secret password” problem: OCA
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has to spend time explaining the assistor–interpreter distinction to limited-English-proficiency
voters because the Texas Election Code limits the use assistors and interpreters instead of simply
permitting voters to receive help in the manner provided for in Section 208.
3. Conclusion
The Court and the Court of Appeals have both found that Section 208 applies to steps in the
voting process that take place both before entering and after leaving the voting booth. (Order, Dkt.
60, at 19); OCA-Greater Houston, 867 F.3d at 615. Sections 64.031 and 64.032(c) together permit
voters to receive assistance to vote to the same extent permitted by Section 208. Section 64.0321
then limits that right to assistance to conduct that occurs in the voting booth.
As discussed above, Section 64.0321 falls within the scope of the parties’ presentation of
their dispute because the parties have disagreed about whether Section 64.0321 is coextensive with
Section 208 throughout this litigation. More importantly, because it limits voters’ right to assistance,
Section 64.0321 causes the injury articulated by OCA throughout this litigation by requiring the
organization to teach its members that they must be careful about identifying their helpers as either
“assistors” or “interpreters” based on what they need help with at the polling place. In keeping with
the Court of Appeals’ mandate, the Court will therefore include Section 64.0321 in its revised
injunction.
II. REVISED INJUNCTION
In light of the Court’s August 12th Order, the Court of Appeals’ opinion, and the
considerations discussed above, the Court ENJOINS Defendants, their employees, agents, and
successors in office, and all persons acting in concert with them, from enforcing Texas Election
Code Section 64.0321 or Texas Election Code Section 61.033.
Additionally, the Court further ENJOINS Defendants to implement a remedial plan
consistent with the following terms:
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1) Defendants shall revise training and instructional materials for state and county election
officials to remove language that reflects the substance of Sections 61.033 and 64.0321.
Specifically, such training and instructional materials shall no longer state that (a) an
interpreter must be registered to vote in the same county as the voter; or (b) that
assisting a voter is limited to conduct that occurs while the person is in the presence of
the voter’s ballot or carrier envelope. This component of the Court’s injunction shall
apply only to training or instructional materials published more than six weeks after the
date of this order.
2) Defendants shall distribute notice to all county elections departments clarifying that they
are not to enforce Sections 61.033 and 64.0321. The notice should explicitly explain that
an eligible voter is entitled to receive assistance from a person of their choosing, even if
the person is not a registered voter, is registered to vote in a different county, is not of
age to vote, or is not a United States citizen, so long as that person is eligible to provide
assistance under Section 208. The notice should also explain that an eligible voter is
entitled to receive assistance from a person of their choosing regardless of whether they
identify that person as their “assistor” or “interpreter.” The notice may be distributed
through any means, electronic or otherwise, reasonably calculated to inform county
election officials that they are not to enforce Sections 61.033 or 64.0321. Defendants
shall issue this notice no later than three months after the date of this order.
SIGNED on May 15, 2018.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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