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    Longoria v. Paxton

    The Brennan Center and co-counsel filed a lawsuit in federal court challenging a provision of Texas’s new omnibus voter suppression law that makes it a crime for public officials and election officials to encourage eligible voters to apply to vote by mail.

    Last Updated: July 5, 2022
    Published: December 10, 2021

    Voting in Texas has never been easy. Even before the Texas Legislature passed S.B. 1, Texas was among the states that make it hardest for voters to register and vote, with some of the most onerous voting restrictions in the country.

    But on August 31, the Texas legislature made it even harder to vote by passing S.B. 1, an omnibus voter suppression bill. S.B. 1’s “anti-solicitation” provision makes it a state jail felony for public officials and election officials to solicit mail ballot applications from voters who are eligible or may be eligible to vote by mail. It also makes election officials liable for civil penalties for any violation of the election code, including the anti-solicitation provision. 

    On December 10, the Brennan Center and the Harris County Attorney’s Office filed a complaint in the U.S. District Court for the Western District of Texas against Texas Attorney General Ken Paxton, challenging S.B. 1’s anti-solicitation provision under the U.S. Constitution. For more information about the Brennan Center’s lawsuit challenging other provisions of S.B. 1, LUPE v. Abbott, click here.

    We represent Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar. Plaintiffs assert that S.B. 1’s anti-solicitation provision violates the First and Fourteenth Amendments because it criminalizes constitutionally protected speech.

    Plaintiffs are also repres­en­ted by Weil, Gotshal & Manges LLP. Longoria is also represented by the Harris County Attorney’s Office.

    On Decem­ber 27, plaintiffs filed an amended complaint naming the local district attor­neys of Harris County, Willi­am­son County, and Travis County, as well as the State Attorney General, as defend­ants in the lawsuit. And on Decem­ber 28, Plaintiffs filed for a prelim­in­ary injunc­tion, request­ing the court to enjoin S.B. 1’s anti-soli­cit­a­tion provi­sion no later than Febru­ary 14, 2022. Plaintiffs sought this quick relief to ensure that Texas voters can meet the dead­line of Febru­ary 18, 2022, to request a mail ballot applic­a­tion for the March 1, 2022 primary elec­tion. Following a hearing on February 11, 2022, the Court granted plaintiffs’ motion for a preliminary injunction, barring the defendants from enforcing the anti-solicitation provision against them during the lawsuit.

    The Attorney General and Williamson County district attorney appealed portions of the preliminary injunction to the Fifth Circuit Court of Appeals. Oral argument took place on March 8, 2022. The Fifth Circuit temporarily stayed the appealed portions of the preliminary injunction during the appeal, but the portions of the preliminary injunction protecting Longoria from criminal prosecution and Morgan from criminal prosecution in Travis County remained in effect.    

    On March 21, 2022, the Fifth Circuit asked the Texas Supreme Court to interpret the meaning of S.B. 1’s anti-solicitation provision as a matter of Texas law. Oral argument occurred before the Texas Supreme Court on May 11, 2022. The Supreme Court determined on June 10, 2022, that Morgan was not a “public official” under S.B. 1 but declined to say whether other volunteer deputy registrars are public officials under the statute. Additionally, the Court held that the Attorney General could not enforce the civil penalties provision in S.B. 1 against Longoria but did not rule on whether the Attorney General has any authority to enforce that provision.

    Following the Texas Supreme Court’s ruling, the Fifth Circuit vacated the challenged portions of the injunction and returned the case to the District Court with instructions to dismiss. As to Morgan, the Court found that she lacked standing to sue the Williamson County district attorney because she is not a public official and therefore not subject to prosecution under the anti-solicitation provision. The Court also held that Longoria’s claims against the Attorney General were barred by sovereign immunity because the Attorney General could not enforce the civil penalties provision against her. On June 28, 2022, the District Court granted the Attorney General’s and Williamson County district attorney’s motions to dismiss as to the appealed portions of the injunction. On July 1, 2022, plaintiffs dismissed their remaining claims.

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