Case: 20-20574 Document: 00516068234 Page: 1 Date Filed: 10/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 25, 2021
No. 20-20574 Lyle W. Cayce
Clerk
Steven F. Hotze, M.D.; Wendell Champion; Honorable Steve
Toth; Sharon Hemphill,
Plaintiffs—Appellants,
versus
Teneshia Hudspeth, in her official capacity as Harris County
Clerk,
Defendant—Appellee,
Andrea Chilton Greer; Yekaterina Snezhkova; Joy
Davis-Harasemay; Diana Untermeyer; Michelle
Colvard; Karen Vidor; Malkia Hutchinson-Arvizu;
Anton Montano; Helen Shelton; Elizabeth Furler;
Alan Mauk; Jenn Rainey; Brian Singh; Mary Bacon;
Kimberly Phipps-Nichol; Nyguen Griggs; Nelson
Vanegas; Jessica Goodspero; Amy Ashmore; Richard
Frankel; Elaine Frankel; Ryan Frankel; Celia Veselka;
Sergio Aldana; Russell “Rusty” Hardin; Douglas Moll;
Carey Jordan; Christina Massara; Jerelyn M. Gooden;
Stanley G. Schneider; Mary Currie; Carlton Currie,
Jr.; Jekaya Simmons; Daniel Coleman; David Hobbs;
Bettye Hobbs,
Intervenor Defendants—Appellees.
Case: 20-20574 Document: 00516068234 Page: 2 Date Filed: 10/25/2021
No. 20-20574
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-3709
Before Davis, Haynes, and Oldham, Circuit Judges.
Haynes, Circuit Judge:
Having fully considered the briefing, record, and oral argument on
appeal, we conclude that Plaintiffs’ request to enjoin Harris County’s
administration of drive-thru voting in the November 2020 election is moot.
Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010). 1 Since Plaintiffs
filed their appeal, the November 2020 election has been completed; the
results have been certified; and new officeholders have been sworn in.
Therefore, the “issues presented are no longer ‘live.’” La. Env’t Action
Network v. EPA,
382 F.3d 575, 581 (5th Cir. 2004) (quotation omitted).
Plaintiffs recognize that their claims are moot as to the November
2020 election and argue instead that drive-thru voting should be enjoined for
future elections. In their briefing, they failed to identify any evidence in the
record before the district court demonstrating that Harris County will offer
that sort of voting again in the future, let alone that it will offer it in such a
way as to evade judicial review. See Libertarian Party v. Dardenne, 595 F.3d
215, 218 (5th Cir. 2010). While this appeal was pending, the Texas legislature
passed S.B.1, which addresses drive-thru voting. The parties filed
supplemental briefing regarding the fact that this statute takes effect on
1
Although Plaintiffs sought various forms of relief from the district court, they only
briefed arguments concerning injunctive relief on appeal and have therefore forfeited any
arguments concerning the continuing vitality of any other form of relief. Douglas W. ex rel.
Jason D.W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998) (per curiam).
2
Case: 20-20574 Document: 00516068234 Page: 3 Date Filed: 10/25/2021
No. 20-20574
December 2, 2021. We conclude that the challenge raised in last year’s case
before the district court is moot as to elections after December 2, 2021.
Nothing in the district court record specifically addresses the gap in
time between now and December 2, 2021, of course. But the only election
Plaintiffs can point to during that time gap, where Harris County could
conceivably once again engage in drive-thru voting and where the merits
would fall under law preceding S.B.1, is the election set for November 2,
2021.
Thus, we turn to a different jurisdictional question—standing.
“Unless a party seeking a remedy can show direct injury, this court will deny
standing.” Friends of St. Frances Xavier Cabrini Church v. FEMA, 658 F.3d
460, 466 (5th Cir. 2011). One of the plaintiffs, Hotze, is a Harris County
voter. The other three were candidates in the 2020 election, two for state
positions (Toth for state representative and Hemphill for state district judge)
and one for a federal position (Champion for Congress). The four plaintiffs
asserted a joint contention that drive-thru voting hurt the “integrity” of the
election process. This claim is far too generalized to warrant standing. Lance
v. Coffman,
549 U.S. 437, 441–42 (2007) (per curiam) (concluding that voters
lacked standing to bring an Elections Clause challenge regarding a
congressional redistricting plan enforced by a state supreme court). While
they addressed the separate question of candidate standing in passing in their
brief to this court, we conclude that they failed to meaningfully brief that
issue, therefore forfeiting it. See Procter & Gamble Co. v. Amway Corp.,
376
F.3d 496, 499 n.1 (5th Cir. 2004).
Even if we consider the argument that candidates have standing and
assume arguendo that candidates do have standing to challenge election
3
Case: 20-20574 Document: 00516068234 Page: 4 Date Filed: 10/25/2021
No. 20-20574
procedures, 2 that standing would pertain only to their claim as to the
November 2020 election, the only election in which they claimed to be
candidates. Standing, while addressed at the time of filing, is evaluated “on
a claim-by-claim basis.” Id. The November 2021 election does not include
congressional offices, and Plaintiffs have not even claimed that they are
otherwise up for election in November 2021 or have any other basis for
standing that differs from any other Harris County voter. Thus, they fall
simply in the general group of voters, who, as stated above, lack standing in
this case. Thus, we lack jurisdiction to address any claims regarding the
November 2021 election as well.
Accordingly, we AFFIRM the district court’s denial of injunctive
relief and the district court’s dismissal of Plaintiffs’ claims for want of
jurisdiction. Since the district court likewise lacked jurisdiction, we also
VACATE its advisory discussion of the legality of drive-thru voting without
offering any opinion as to the merits of that reasoning.
2
This issue is far from clear, but we need not reach it here. Compare Carson v.
Simon, 978 F.3d 1051, 1058–59 (8th Cir. 2020) (per curiam) (concluding that candidates
for presidential elector had standing under the Electors Clause), with Bognet v. Sec’y of Pa.,
980 F.3d 336, 351–52 & n.6 (3d Cir. 2020) (specifically declining to follow Carson and
concluding that a candidate lacked a cognizable injury under the Elections and Electors
Clauses), vacated and remanded with instructions to dismiss as moot sub nom. Bognet v.
Degraffenreid, No. 20-740,
2021 WL 1520777 (U.S. April 19, 2021) (mem.). Notably,
however, contrary to the dissenting opinion’s assertion, there was no indication of how the
candidates would be specifically harmed by allowing all voters to do drive-thru voting. Just
challenging the “integrity” of the voting process is too general to suffice. As the Supreme
Court explained in Lance v. Coffman, an alleged injury based solely on an allegation “that
the law—specifically, the Elections Clause—has not been followed” amounts to an
“undifferentiated, generalized grievance about the conduct of government” insufficient to
establish standing.
549 U.S. 437, 442 (2007) (per curiam) (concluding that voters lacked
standing to bring an Elections Clause challenge regarding a congressional redistricting plan
enforced by a state supreme court). That is precisely the sort of alleged harm that all of the
Plaintiffs claim that they experienced here.
4
Case: 20-20574 Document: 00516068234 Page: 5 Date Filed: 10/25/2021
No. 20-20574
Andrew S. Oldham, Circuit Judge, dissenting:
The majority confuses standing and mootness. I respectfully dissent.
I.
Let’s start with standing. The plaintiff invoking our judicial power
must have an injury-in-fact, traceable to the defendant, and redressable by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992). Standing is determined at the time a suit is filed. See Davis v. FEC,
554 U.S. 724, 734 (2008) (“While the proof required to establish standing
increases as the suit proceeds, the standing inquiry remains focused on
whether the party invoking jurisdiction had the requisite stake in the outcome
when the suit was filed.” (emphasis added) (quotation omitted)); see also
Lujan,
504 U.S. at 570 n.4 (opinion of Scalia, J.) (noting the Court’s
“longstanding rule that jurisdiction is to be assessed under the facts existing
when the complaint is filed”); accord Pederson v. La. State Univ.,
213 F.3d
858, 870 (5th Cir. 2000).
At the time the plaintiffs filed this action, at least one candidate for
office had standing. The candidate’s injury-in-fact should be self-evident.
Candidates for office spend money, devote time, and otherwise injuriously
rely on provisions of the Election Code in organizing, funding, and running
their campaigns. Suppose, for example, the Election Code specifies a 12-day
period for in-person early voting. Suppose further a candidate injuriously
relies on that Code provision and budgets $500,000 for get-out-the-vote
efforts during that 12-day period. Would she be injured in fact if the county
clerk unlawfully shortened in-person voting from 12 days to 12 hours? Of
course she would: The candidate could point to, among other injuries, the
fact that she injuriously relied on the Code to set aside $500,000 that she
could’ve spent elsewhere. It should be equally obvious that the injury is
traceable to the county clerk’s unlawful decision, and that the injury is
5
Case: 20-20574 Document: 00516068234 Page: 6 Date Filed: 10/25/2021
No. 20-20574
redressable by enjoining the unlawful shortening of in-person voting. In
short, the candidate would have Article III standing.
The majority’s response is to suggest that a candidate might not suffer
a “cognizable injury” from an unlawful election. See ante, at 4 n.2. That’s
equally startling and wrong. For one thing, the majority’s support for that
proposition is a now-vacated decision by the Third Circuit. See Bognet v. Sec’y
of Pa., 980 F.3d 336 (3d Cir. 2020), vacated and remanded with instructions to
dismiss as moot sub nom. Bognet v. Degraffenreid, No. 20-740,
2021 WL
1520777 (U.S. Apr. 19, 2021) (mem.). Vacated authority, of course, is no
authority at all. For another thing, it makes no sense to say (as the Third
Circuit said) that violations of the Election Code do not affect a candidate “in
a particularized way.” Bognet,
980 F.3d at 351. The candidate who pours
money and sweat into a campaign, who spends time away from her job and
family to traverse the campaign trail, and who puts her name on a ballot has
an undeniably different—and more particularized—interest in the
lawfulness of the election as compared to the interests of some random voter.
In fact, it’s hard to imagine anyone who has a more particularized injury than
the candidate has. And that presumably explains why the only non-vacated
circuit authorities to confront this question have held that candidates do have
standing to contest violations of election law. See Carson v. Simon,
978 F.3d
1051, 1058 (8th Cir. 2020) (per curiam) (framing the interest as being “in
ensuring that the final vote tally accurately reflects the legally valid votes
cast”); Trump v. Wis. Election Comm’n,
983 F.3d 919, 924 (7th Cir. 2019)
(“As a candidate for elected office, the President’s alleged injury is one that
affects him in a personal and individual way.” (quotation omitted) (citing
Lujan,
504 U.S. at 560, and Carson,
978 F.3d at 1058)).
The majority further suggests that the candidates’ injuries are
“undifferentiated, generalized grievances.” See ante, at 4 n.2 (quoting Lance
v. Coffman, 549 U.S. 437, 442 (2007) (per curiam)). There are at least two
6
Case: 20-20574 Document: 00516068234 Page: 7 Date Filed: 10/25/2021
No. 20-20574
problems with that. First, Lance was about whether voters had standing to
bring an Elections Clause claim. It said nothing about candidates, who clearly
have different (and more particularized) interests. And second, an injury is a
“generalized grievance” if the injured party is “claiming only harm to his and
every citizen’s interest in proper application of the Constitution and laws, and
seeking relief that no more directly and tangibly benefits him that it does the
public at large.” Lujan, 504 U.S. at 573–75 (emphasis added). But the injury
suffered by a candidate for office is in no sense “common to all members of
the public.” Ex parte Levitt, 302 U.S. 633, 634 (1937) (per curiam). It’s not
something “all citizens share.” Schlesinger v. Reservists Comm. to Stop the
War,
418 U.S. 208, 217 (1974). It’s something only candidates experience.
If one of the candidate plaintiffs had standing at the time the suit was
filed, the candidate has standing now. “It is quite clear, that the jurisdiction
of the Court depends upon the state of things at the time of the action
brought, and that after vesting, it cannot be ousted by subsequent events.”
Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957) (quoting Mollan v. Torrance,
22
U.S. (9 Wheat.) 537, 539 (1824)); see also Freeport-McMoRan, Inc. v. K N
Energy, Inc.,
498 U.S. 426, 428 (1991) (per curiam) (“We have consistently
held that if jurisdiction exists at the time an action is commenced, such
jurisdiction may not be divested by subsequent events.”); accord Carr v. Alta
Verde Indus., Inc.,
931 F.2d 1055, 1061 (5th Cir. 1991) (“As with all questions
of subject matter jurisdiction except mootness, standing is determined as of
the date of the filing of the complaint, and subsequent events do not deprive
the court of jurisdiction.”); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc.,
528 U.S. 167, 189–92 (2000) (comparing standing with the
doctrine of mootness, which is affected by subsequent events). It’s therefore
not true that the standing “issue is far from clear.” Ante, at 4 n.2. It’s
pellucid. At least one candidate had standing at the filing, and that’s the only
standing that matters.
7
Case: 20-20574 Document: 00516068234 Page: 8 Date Filed: 10/25/2021
No. 20-20574
II.
Now let’s talk about mootness. There was a time, a long time ago,
when some thought that mootness was “the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue through its existence (mootness).”
Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82
Yale L.J. 1363, 1384 (1973); see also, e.g., Arizonans for Official English v.
Arizona,
520 U.S. 43, 68 n.22 (1997) (appearing to endorse Monaghan’s
view). If that were the law today, you might understand the majority’s
approach because the majority could concede (the undeniable proposition)
that the candidates had standing when the suit started but then conclude (the
erroneous proposition) that the candidates lost standing after the election,
thus mooting the case.
But the law has been otherwise for more than a generation. In 2000,
the Laidlaw Court largely rejected Monaghan’s view of mootness. The Court
held that “[c]areful reflection on the long-recognized exceptions to
mootness,” such as the capable-of-repetition-yet-evading-review doctrine,
“reveals that the description of mootness as ‘standing set in a time frame’ is
not comprehensive.” Laidlaw, 528 U.S. at 190. “[T]here are circumstances
in which the prospect that a defendant will engage in (or resume) harmful
conduct may be too speculative to support standing, but not too speculative
to overcome mootness.”
Ibid.
This is the precise case that Laidlaw described. In a supplemental
letter brief, Harris County not only refused to disclaim unlawful drive-through voting for future elections—it promised to continue that practice. 1
1
This is a 180 from Harris County’s previous litigation position. Compare Red Br.
at 14 (“[N]othing in this record indicates that drive-through voting will recur in the
8
Case: 20-20574 Document: 00516068234 Page: 9 Date Filed: 10/25/2021
No. 20-20574
No matter whether that’s enough to confer standing, Harris County’s
promise is certainly enough to prevent the case from becoming moot. The
plaintiffs sought prospective relief: They asked for an injunction prohibiting
unlawful drive-through voting in future elections. And in contrast to its
earlier representations, Harris County now promises to use drive-through
voting in future elections. See n.1, supra.
The majority’s only response is that the candidate plaintiffs might
have standing to challenge violations of the Election Code in the November
2020 election, but that “claim” is now moot. See ante, at 4 & n.2. Again, this
confuses standing and mootness. Mootness does not attach to claims;
mootness is a function of the Article III power over an entire case. See DeFunis
v. Odegaard, 416 U.S. 312 (1974) (per curiam); R. Fallon, J. Manning,
D. Meltzer & D. Shapiro, Hart and Wechsler’s The
Federal Courts and the Federal System 201 (7th ed. 2015).
And the case plainly is not moot for the reasons given above.
III.
Because the district court had subject-matter jurisdiction, I turn
briefly to the merits. I can be brief because the merits are straightforward.
The plaintiffs sought relief under 42 U.S.C. § 1983 for, inter alia,
violations of the Elections Clause. See U.S. Const. art. I, § 4, cl. 1. The
Elections Clause provides that “The Times, Places and Manner” of
congressional elections “shall be prescribed in each State by the Legislature
thereof.” Ibid. To show a violation of the Elections Clause, the plaintiffs must
future.”), with Suppl. Br. at 3 (“[T]he newly-appointed Harris County Elections
Administrator has publicly stated an intention to conduct drive-through voting in [the
November 2021] election using the same measures as in prior elections.”), and id. at 2
(arguing that “S.B. 1 appears to validate [Harris County’s] approach” to drive-through
voting).
9
Case: 20-20574 Document: 00516068234 Page: 10 Date Filed: 10/25/2021
No. 20-20574
show a “significant departure” from the election scheme enacted by the
Legislature. Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J.,
concurring). 2 Such a departure occurs when the “general coherence” of the
legislative scheme is “altered” or “wholly change[d]” by officials outside the
Legislature.
Id. at 114.
Harris County has taken the remarkable position that it (1) wholly
ignored provisions of the Texas Election Code in 2020, and (2) can continue
wholly ignoring those provisions in future elections—notwithstanding the
Legislature’s express instructions to the contrary. The Texas Election Code
specifically contemplates voting without entering a polling place—but only
for a limited class of voters. The Legislature made this accommodation
available only to those “physically unable to enter the polling place without
personal assistance or likelihood of injuring the voter’s health.” Tex.
Elec. Code § 64.009; see also Red Br. at 41 (acknowledging the
accommodation applies only to “voters with special physical disabilities or
health risks”). Harris County made this option available to “all voters who
would like to be able to vote from the safety and comfort of [their]
vehicle[s].”
2
The parties agree that Chief Justice Rehnquist’s concurrence in Bush v. Gore
provides the relevant legal standard. See Blue Br. at 26; Red Br. at 31. That proposition is
not self-evident. Bush v. Gore involved the Electors Clause in Article II; this case involves
the Elections Clause in Article I. Compare U.S. Const. art. II, § 1, cl. 2 (“Each State shall
appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”),
with U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State by the Legislature
thereof.”). But any distinction between the two clauses militates in the plaintiffs’ favor:
The text of the Elections Clause is arguably more specific, tasking the Legislature with
prescribing “The Times, Places, and Manner” of holding elections. So while “significant
departure” is the standard for assessing violations of the Electors Clause, the Elections
Clause is at least that protective of the Legislature’s choices if not more protective.
10
Case: 20-20574 Document: 00516068234 Page: 11 Date Filed: 10/25/2021
No. 20-20574
Harris County’s decision to permit all voters to participate in drive-through voting poses two clear textual problems. First, it violates the
principle that the expression of one thing implies the exclusion of others
(expressio unius est exclusio alterius). See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts
107–11 (2012). In § 64.009, the Texas Legislature clearly specified that voters
with special physical disabilities or health risks be permitted to vote without
entering a polling place. By extending the accommodation to that group only,
the Legislature impliedly excluded everyone else.
Second, reading the Election Code to permit drive-through voting for
all voters renders § 64.009 meaningless: There is no need for a special
accommodation if the voters covered by § 64.009—like everyone else—can
vote from their vehicles. And an interpretation that reads § 64.009 right out
of the Code cannot be correct. See Marx v. Gen Revenue Corp., 568 U.S. 371,
385 (2013) (surplusage canon is “strongest when an interpretation would
render superfluous another part of the same statutory scheme”); Scalia &
Garner, supra, at 174 (No provision should “be given an interpretation that
causes it . . . to have no consequence.”).
And of course, Election Code § 64.009 is not the only provision of
Texas law Harris County has ignored (and promises to continue ignoring).
See Blue Br. at 22–23, 26 (pointing to other provisions). Consider just a few
more examples:
• Texas Election Code § 61.003 makes it a criminal offense for a person
to post or use “political signs or literature” within 100 feet of a polling
place. Yet Harris County candidly admits that it did nothing to enforce
this provision against electioneering bumper stickers on vehicles in its
drive-through voting stations.
11
Case: 20-20574 Document: 00516068234 Page: 12 Date Filed: 10/25/2021
No. 20-20574
• Texas Election Code § 64.002(a) provides that, “[e]xcept as
otherwise provided by this code, only one person at a time may occupy
a voting station.” Yet Harris County candidly admits that it did
nothing to prevent more than one person from occupying vehicles in
its drive-through voting stations. To the contrary, Harris County
publicly invited its residents to violate this provision by carpooling.
• Texas Election Code § 62.004(1) requires Harris County to arrange
its voting stations so that “the voting area is in view of the election
officers, watchers, and persons waiting to vote but is separated from
the persons waiting to vote.” The same section requires Harris
County to ensure that “the voting area is adequately lighted.” Id.
§ 62.004(3). The undisputed record evidence shows that Harris
County wholly ignored this provision, too.
• Texas Penal Code § 46.03(a)(2) makes it a criminal offense to possess
a firearm (among other weapons) “on the premises of a polling place
on the day of an election or while early voting is in progress.” Yet
again, Harris County candidly admits that it did nothing to prevent
voters from bringing firearms to its drive-through voting stations.
Harris County’s only response to these problems is that it can wholly
ignore some provisions of Texas law without altering the “general
coherence” of the legislative scheme enacted by the Legislature. Bush v.
Gore, 531 U.S. at 114 (Rehnquist, C.J., concurring). When asked at argument
how many provisions of Texas law the County could ignore before violating
the Elections Clause, Harris County had no answer. And when invited to file
a supplemental brief to address a new law—passed by the Legislature to put
beyond doubt the illegality of Harris County’s conduct—the County doubled
down with the head-scratching insistence that the new law somehow blessed
its violations of the law in the past and its plans to violate it in the future.
12
Case: 20-20574 Document: 00516068234 Page: 13 Date Filed: 10/25/2021
No. 20-20574
Reasonable people can disagree about the wisdom or folly of drive-through voting. The place for that debate is in the Legislature. Once the
dispute enters our courts, however, the only question is what the law
commands. And the law could not be clearer in its prohibition of Harris
County’s conduct.
I respectfully dissent.
13
