(CN) — The Fifth Circuit ruled on Thursday that Kim Ogg, the district attorney for Harris County, Texas, should have been granted sovereign immunity in a lawsuit against her and other state officials challenging sweeping changes to the Texas election code.
Senate Bill 1, or the Election Integrity Protection Act of 2021, modified policies for early voting, voting by mail and voter assistance. It also made changes to election-related criminal statutes, and added new ones — for instance, making it a crime for an election officer to refuse to turn away a poll watcher.
Voter rights advocacy groups say the legislation runs afoul of the Voting Rights Act of 1965; Americans with Disabilities Act; and the First, 14th and 15th Amendments of the U.S. Constitution.
Three groups of plaintiffs updated their complaints to include Ogg as a defendant after after a the Fifth Circuit found in a 2022 ruling in State v. Stephens that another law, which granted the Texas attorney general unilateral authority to prosecute election law violations, went against the state’s constitution.
Ogg argued she had sovereign immunity from prosecution in this case, but the lower court denied her motion to dismiss the whole case against her on that basis. Instead, a federal judge allowed the challenges to the criminal provisions of SB 1 to continue, and found that Ogg did not have immunity from those specific challenges, citing a 1908 Supreme Court case, Ex parte Young, as the basis for an exception to Ogg’s claim of sovereign immunity.
A three-judge panel reversed parts of the that decision and vacated others, ruling that the plaintiffs “failed to demonstrate an adequate enforcement connection between Ogg and the challenged provisions of [SB 1] for Ex parte Young to apply.”
U.S. Circuit Judge Leslie Southwick penned the 34-page ruling for the panel, which included fellow George W. Bush appointee Chief U.S. Circuit Judge Priscilla Richman and the Trump-appointed U.S. Circuit Judge Andrew Oldham.
Southwick wrote that there are three guideposts to determine whether a state official is a proper defendant under Ex parte Young, based on prior Fifth Circuit precedent:
“They are: (1) the state official has ‘more than the general duty to see that the laws of the state are implemented,’ i.e., a ‘particular duty to enforce the statute in question:’ (2) the state official has ‘a demonstrated willingness to exercise that duty’; and (3) the state official, through her conduct, ‘compel[s] or constrain[s persons] to obey the challenged law.”
The circuit ruled in Ogg’s favor on each of those three grounds, and found the lower court should have dismissed the constitutional claims against her as barred by sovereign immunity.
First, the judges found, even though she had the authority to enforce the criminal provisions of SB 1, she had no particular duty to enforce them. Indeed, no part of the law or the election code it amended specifically stated that local district attorneys were required to prosecute violations under them.
Nor had Ogg had not demonstrated a willingness to enforce those provisions, the panel continued: not at the time of the lawsuit, and not since then.
Third, the panel ruled, the plaintiffs’ fear of prosecution under SB 1 did not mean Ogg had compelled them to obey the law.
“Although this fear of prosecution may be sufficient for standing,” Southwick wrote, “it is insufficient to demonstrate compulsion or constraint under our Ex parte Young precedent. Ogg has neither enforced the challenged statute against anyone nor threatened to do so.”
But the Fifth Circuit did not extend its ruling beyond the "enforcement connection" question, and declined to address Ogg’s arguments about the plaintiffs’ standing in the case, leaving that for the lower court.
Southwick clarified repeatedly that Ex parte Young decisions always will be on a case-by-case basis.
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