Case 5:21-cv-00844-XR Document 1157 Filed 09/28/24 Page 1 of 78

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

LA UNIÓN DEL PUEBLO ENTERO, et al., §

Plaintiffs, §
§
v. § 5:21-CV-0844-XR
§ [Consolidated Cases]
GREGORY W. ABBOTT, et al., §
Defendants. §

FINDINGS OF FACT AND CONCLUSIONS OF LAW

(OVERBREADTH, VAGUENESS, AND FREE SPEECH CHALLENGES TO S.B. 1 § 7.04)
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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3
PROCEDURAL HISTORY ............................................................................................................ 5
FINDINGS OF FACT ..................................................................................................................... 7
THE CANVASSING RESTRICTION........................................................................................ 7
THE PARTIES ............................................................................................................................ 8
The OCA Plaintiffs.............................................................................................................. 9
OCA-Greater Houston .................................................................................................... 9
League of Women Voters of Texas................................................................................ 11
The LULAC Plaintiffs ...................................................................................................... 12
League of United Latin American Citizens .................................................................. 12
Texas AFT ..................................................................................................................... 13
Texas Alliance for Retired Americans .......................................................................... 14
The LUPE Plaintiffs .......................................................................................................... 15
La Union Del Pueblo Entero ......................................................................................... 15
Mexican American Bar Association of Texas ............................................................... 16
Defendants ............................................................................................................................ 16
The Texas Attorney General ............................................................................................. 17
The Texas Secretary of State ............................................................................................. 19
The County DAs ............................................................................................................... 20
IMPACT OF THE CANVASSING RESTRICTION ................................................................ 21
There is widespread confusion about how to interpret the Canvassing Restriction ............. 21
Confusion about the meaning of “compensation or other benefit”................................... 22
Confusion about the meaning of “physical presence” ...................................................... 23
Confusion about canvassers’ ability to provide voting assistance .................................... 23
The Canvassing Restriction has chilled Plaintiffs’ in-person interactions with voters ......... 24
CONCLUSIONS OF LAW........................................................................................................... 27
SUBJECT MATTER JURISDICTION..................................................................................... 27
Plaintiff’s Claims fall within the Ex parte Young Exception to Sovereign Immunity .......... 27
Plaintiffs have Standing to Challenge the Canvassing Restriction ....................................... 34
PLAINTIFFS’ CONSTITUTIONAL CHALLENGES............................................................. 45
The Canvassing Restriction is Facially Overbroad ............................................................... 53
The Canvassing Restriction is Unconstitutionally Vague ..................................................... 66
The Canvassing Restriction is Unconstitutional as applied to Plaintiffs’ Speech................. 72
PERMANENT INJUNCTION OF THE CANVASSING RESTRICTION ............................. 74
CONCLUSION ............................................................................................................................. 77

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INTRODUCTION

On September 7, 2021, Texas Governor Greg Abbott signed into law the Election

Protection and Integrity Act of 2021, an omnibus election law commonly referred to as “S.B. 1.”

See Election Integrity Protection Act of 2021, S.B. 1, 87th Leg., 2d Spec. Sess. (2021).

Premised on the state legislature’s authority to make all laws necessary to detect and punish

fraud under article VI, section 4 of the Texas Constitution, S.B. 1 amended the Texas Election

Code to, among other things, prohibit compensated canvassers from engaging in voter advocacy

in the presence of a mail-in ballot (the “Canvassing Restriction”). 1 See S.B. 1 § 7.04 (JEX 1 at 59–

60), codified at TEX. ELEC. CODE (“TEC” or the “Election Code”) § 276.015. 2

Several private plaintiffs filed lawsuits, challenging certain provisions of S.B. 1 as

unconstitutional and otherwise unlawful under federal voter-protection statutes. For judicial

economy, these were consolidated under the above-captioned case, which was first filed. 3

1
While Section 7.04 of S.B. 1 sets out a ban on “vote harvesting,” see TEC § 276.015, Plaintiffs generally refer to the
provision as a “ban on in-person canvassing” or “voter interaction ban.” See, e.g., ECF No. 848 ¶ 97; ECF No. 849 ¶
296. In the Court’s view, all three characterizations are misleading in multiple respects. Regardless of how the term
is defined in the Election Code, Section 7.04’s proscriptions reach conduct well beyond any common understanding
of “vote harvesting.” On the other hand, the provision does not ban canvassers from interacting with voters
altogether—it prohibits compensated interactions in the presence of a mail ballot. In an effort to describe Section
7.04’s scope more accurately and impartially, the Court refers to the challenged provisions as the “Canvassing
Restriction” throughout this order.
2
Section 7.04 of S.B. 1 also added TEC provisions addressing the solicitation of applications to vote by mail (TEC §
276.016), the distribution of early voting ballots and balloting materials (TEC § 276.017), and unauthorized alterations
to election procedures (TEC § 276.019). For the purposes of this order, however, “Section 7.04” refers only to the
Canvassing Restriction, codified at TEC § 276.015.
3
See ECF No. 31 (consolidating OCA-Greater Houston v. Esparza, No. 1:21-cv-780 (W.D. Tex. 2021); Houston Area
Urban League v. Abbott, No. 5:21- cv-848 (W.D. Tex. 2021); LULAC Texas v. Esparza, No. 1:21-cv-786 (W.D. Tex.
2021) and Mi Familia Vota v. Abbott, No. 5: 21-cv-920 (W.D. Tex. 2021) under the lead case.

3
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Three Plaintiffs groups—the OCA Plaintiffs, 4 the LULAC Plaintiffs, 5 and the LUPE

Plaintiffs 6—assert that Section 7.04’s Canvassing Restriction is overbroad, unconstitutionally

vague, and burdens their core political speech. See Tr. at 230:14–17, 232:24–233:1, 234:23–235:4.

Following a six-week bench trial, the Court agrees.

After careful consideration, the Court issues the following findings of fact and conclusions

of law pursuant to FED. R. CIV. P. 52(a) bearing on Plaintiffs’ claims under 42 U.S.C. § 1983 that

the Canvassing Restriction, codified at TEC § 276.015, violates the First and Fourteenth

Amendments of the United States Constitution.

4
For the purposes of the OCA Plaintiffs’ free speech and due process challenges to the Canvassing Restriction, this
group includes OCA-Greater Houston and the League of Women Voters of Texas. See ECF No. 200 (OCA Compl.)
¶¶ 214–25 (free speech claim), ¶¶ 226–39 (due process claim); Text Order dated Apr. 14, 2022 (granting Texas
Organizing Project’s withdrawal from the case); ECF No. 551 (granting Workers Defense Action Fund’s withdrawal
from the case and dismissing its claims with prejudice).
5
This group includes LULAC Texas, Texas Alliance for Retired Americans, Texas AFT, and Voto Latino. See ECF
No. 207 (LULAC Compl.) ¶¶ 273–86 (free speech claim).
This group includes La Unión del Pueblo Entero, the Mexican American Bar Association of Texas, the Southwest
6

Voter Registration Education Project, Texas Hispanics Organized for Political Education, Jolt Action, the William C.
Velasquez Institute, FIEL Houston Inc., Friendship-West Baptist Church, Texas Impact, and James Lewin. See ECF
No. 208 (LUPE Compl.) ¶¶ 286–300 (free speech and due process claims).

4
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PROCEDURAL HISTORY

Plaintiffs filed their original complaints in August and September 2021, seeking to enjoin

the Secretary of State and Attorney General of the State of Texas (together, the “State Defendants”)

and local election officials from enforcing many provisions of S.B. 1, including provisions that

(like the Canvassing Restriction) impose criminal liability.

In December 2021, the Texas Court of Criminal Appeals held in State v. Stephens that the

Election Code’s delegation of unilateral prosecutorial authority to the Attorney General to

prosecute election crimes violated the separation-of-powers clause of the Texas Constitution. 663

S.W.3d 45 (Tex. Crim. App. 2021). The court explained that the Texas Constitution assigns to

county and district attorneys, as members of the judicial branch, the “specific duty” to represent

the state in criminal prosecutions. Id. at 52. The Attorney General, as part of the state’s executive

branch, has no similar, independent power under the Texas Constitution. Thus, the Attorney

General can prosecute election crimes only with the consent of local prosecutors. Id. at 47.

Following Stephens, Plaintiffs amended their complaints to join local district attorneys

from several Texas counties as Defendants. 7 The State Defendants moved to dismiss these

complaints in their entirety, including Plaintiffs’ free speech and due process challenges to the

Canvassing Restriction. The Court denied the motions as to those challenges in August 2022,

concluding that Plaintiffs had adequately alleged standing to challenge the Section 7.04 and that

their claims against the State Defendants fell within the Ex parte Young exception to sovereign

immunity. 8

7
Plaintiffs’ Second Amended Complaints (“SACs”), filed in January 2022, are the operative pleadings. ECF Nos.
199, 200, 207, 208.
8
See La Union del Pueblo Entero v. Abbott, 614 F. Supp. 3d 509 [LULAC], 618 F. Supp. 3d 388 [OCA], 618 F. Supp.
3d 504 [LUPE] (W.D. Tex. 2022).

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In May 2023, the State Defendants joined in a motion for summary judgment filed by a

group of Republican committees that intervened in this case as Defendants (the “Intervenor-

Defendants”), 9 arguing that Plaintiffs’ pre-enforcement free speech and vagueness claims were

premature and otherwise meritless because the Canvassing Restriction did not impose a “severe”

burden on protected speech and was intended to protect voters from confusion and undue

influence. See ECF No. 608 at 29–34. The Court carried the motion with the case and addresses

those arguments herein to the extent that they were not disposed in the Court’s orders on the State

Defendant’s motions to dismiss.

The Court held a bench trial from September 11, 2023 to October 20, 2023. In all, the

parties presented about 80 witnesses (both live and by deposition testimony), nearly 1,000 exhibits,

producing over 5,000 pages of trial transcripts. The Court heard testimony from voters, Plaintiffs’

organizational representatives and volunteers, former and current state and local officials, and

expert witnesses.

The parties submitted proposed findings of fact and conclusions of law in January 2024, 10

and presented closing arguments on February 13, 2024. 11

9
The Intervenor-Defendants include the Harris County Republican Party, the Dallas County Republican Party, the
Republican National Committee, the National Republican Senatorial Committee, and the National Republican
Congressional Committee.
10
See, e.g., ECF No. 848 (OCA); ECF No. 849 (LULAC); ECF Nos. 854, 855 (LUPE); ECF No. 843-1 (Dallas County
District Attorney); ECF Nos. 861, 862 (State Defendants). The State Defendants filed their proposed findings of fact
and conclusions of law jointly with the Intervenor-Defendants. See ECF Nos. 861, 862. In light of the joint
submissions, the Court has no need to address the Intervenor-Defendants separately in this order and will attribute the
filings and arguments therein to the State Defendants.
11
At the Court’s request, the parties also submitted supplemental briefing addressing the impact of the Supreme
Court’s recent decision in supplemental briefing addressing the impact of the Supreme Court’s recent decision in FDA
v. All. for Hippocratic Med., 602 U.S. 367 (2024), on Plaintiffs’ standing. See ECF Nos. 1138, 1140, 1142–45.

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FINDINGS OF FACT

THE CANVASSING RESTRICTION

1. Section 7.04 of S.B. 1 creates three new, third-degree felonies under the Election

Code, each imposing up to ten years in prison and a fine of up to $10,000 on anyone who gives,

offers, or receives some “compensation or other benefit” for “vote harvesting services.” TEC §

276.015(f); TEX. PENAL CODE § 12.34.

2. “Vote harvesting services” include any “in-person interaction with one or more

voters, in the physical presence of an official ballot or a ballot voted by mail, intended to deliver

votes for a specific candidate or measure.” TEC § 276.015(a)(2).

3. A “benefit” is “anything reasonably regarded as a gain or advantage, including a

promise or offer of employment, a political favor, or an official act of discretion, whether to a

person or another party whose welfare is of interest to the person.” TEC § 276.015(a)(1).

4. Using these definitions, Section 7.04 creates three third-degree felonies:

(b) A person commits an offense if the person, directly or through a third

party, knowingly provides or offers to provide vote harvesting services in
exchange for compensation or other benefit.

(c) A person commits an offense if the person, directly or through a third

party, knowingly provides or offers to provide compensation or other
benefit to another person in exchange for vote harvesting services.

(d) A person commits an offense if the person knowingly collects or

possesses a mail ballot or official carrier envelope in connection with vote
harvesting services.

TEC §§ 276.015(b)–(d).

5. The Canvassing Restriction contains a number of exceptions. It “does not apply”

to:

(1) an activity not performed in exchange for compensation or a benefit;

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(2) interactions that do not occur in the presence of the ballot or during
the voting process;

(3) interactions that do not directly involve an official ballot or ballot

by mail;

(4) interactions that are not conducted in-person with a voter; or

(5) activity that is not designed to deliver votes for or against a specific
candidate or measure.

TEC § 276.015(e).

THE PARTIES

The Plaintiffs

6. Plaintiffs are membership-driven, non-partisan civil rights and social advocacy

groups in Texas that regularly conduct in-person voter outreach and engagement activities. Despite

the diversity of their respective missions in the state—e.g., encouraging civic participation,

supporting K-12 public school employees, advocating for the interest of senior citizens, improving

infrastructure in the colonias—the Plaintiff organizations rely on in-person voter advocacy to

advance their causes.

7. All Plaintiffs have endorsed ballot measures (and some have supported candidates)

aligned with their organizational missions in the past and deployed staff, independent contractors

and volunteers to engage with voters in person to increase turnout and electoral support for their

preferred measure or candidate. These voter engagement efforts include neighborhood door-

knocking campaigns, voter registration drives, candidate forums, town hall meetings, tabling at

community events, and exit-polling. Plaintiffs’ staff and volunteers have also regularly helped

voters with disabilities and/or voters with limited English proficiency (“LEP”), including voters

who vote by mail.

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8. Plaintiffs’ volunteers often receive refreshments, t-shirts, pens, gas cards, and other

tokens of appreciation for their canvassing and assistance efforts.

9. Plaintiffs’ voter engagement activities generally occur in the weeks before elections

(when they are most effective), when voters are likely to have received their mail ballots. During

some outreach events, voters have taken out their mail ballots while speaking with Plaintiffs’

organizers to ask questions about their ballots or request voting assistance.

10. Plaintiffs fear that the Canvassing Restriction will subject their organizations, staff,

and volunteers—and even voters—to criminal liability for engaging in ordinary and routine in-

person interactions with voters.

The OCA Plaintiffs

OCA-Greater Houston

11. Plaintiff OCA-Greater Houston (“OCA”) is a membership-driven organization

dedicated to advancing the social, political, and economic well-being of Americans of Asian and

Pacific Island descent (“AAPIs”), largely in Harris, Brazoria, and Fort Bend counties. Tr. at

1684:8–12, 1685:1–3, 1686:16–17, 1688:10–14. The organization has nearly 200 dues-paying

members who serve on and elect the organization’s board, and hundreds of volunteer members. Tr.

at 1686:19–1687:7, 1688:7–9.

12. The organization’s mission comprises four main goals: (1) advocate for social

justice, equal opportunity, and fair treatment; (2) promote civic participation, education, and

leadership; (3) advance coalition and community building; and (4) foster cultural heritage. Tr. at

1689:6–13.

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13. In support of this mission, OCA has endorsed and advocated for ballot measures at

in-person events and while conducting door-to-door canvassing and is likely to do so in the future.

Tr. at 1711:8–19, 1712:17–1713:11, 1726:8–14.

14. Before S.B. 1 was enacted, OCA regularly hosted election events attended by

hundreds of people, including in-person candidate forums (Tr. at 1694:21–1696:8), “AAPI meet-

and-greets” with AAPI political candidates (Tr. at 1699:24–1702:2), and voting machine

demonstrations (Tr. at 1706:12–1707:3). Attendees often brought their mail-in ballots to these

events and received assistance, including language assistance, from OCA volunteers and staff. Tr.

at 1696:9–1697:8, 1697:22–1699:7 (candidate forums); Tr. at 1700:1–1702:2 (meet-and-greets),

Tr. at 1706:12–1707:3 (voting machine demonstrations).

15. OCA also engaged in canvassing efforts through volunteers and staff, who knocked

on voters’ doors to provide information about voting. Tr. at 1702:3–17. As they were door-

knocking, some bilingual OCA canvassers assisted voters who requested language assistance with

their mail-in ballots. Tr. at 1703:17–20.

16. In addition to candidate forums, meet-and-greets, and canvassing, OCA conducts

exit-polling at polling locations, where voters also requested (and received) assistance with their

mail-ballots from OCA staff and volunteers. Tr. at 1706:4–11, 1723:6–13.

17. OCA’s voting-related activities are carried out by volunteers and paid staff, all of

whom are OCA members. Tr. at 1687:22–1688:6, 1693:21–25. OCA’s standard practice is to

provide staff, volunteers, and attendees with refreshments during voting-related activities. Tr. at

1694:11–20. OCA provides its members and volunteers with benefits like food and beverages at

in-person events where they provided voting assistance to LEP voters. Tr. at 1694:4–20, 1697:22–

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25. Similarly, OCA provides canvassers with benefits like Gatorade and water “to canvass in the

Texas heat of a hundred degrees or more” to help them stay hydrated. Tr. at 1718:1–5.

League of Women Voters of Texas

18. The League of Women Voters of Texas (“LWV” or the “League”) is a non-partisan

organization founded in San Antonio in 1919 with over 3,000 dues-paying members, including

members in Harris and Travis Counties. Tr. at 1580:1–4, 1585:18–22, 1586:7–19, 1587:19–21.

19. The League’s mission is to empower voters and defend democracy. Tr. at 1580:1–

4. The League actively works to register eligible citizens to vote, ensure that voters’ ballots count,

help voters obtain mail-in ballots, vote by mail, and obtain voter assistance when needed. Tr. at

1580:1–8, 1581:9–18, 1589:12–15, 1589:25–1590:3.

20. The League educates its members and Texas voters about the voting process

through resources it creates, like the League’s voter’s guide, get out the vote (“GOTV”) events for

every election, and voter education materials on the League’s social media, videos, and website.

Tr. at 1583:22–1584:16, 1606:23–1608:10.

21. The League does not endorse specific candidates, Tr. at 1595:18–20, but has

supported ballot measures in the past, Tr. at 1600:17–25.

22. The League hosts in-person election events across Texas that are open to the public,

including candidate forums and discussions of proposed ballot measures and constitutional

amendments. Tr. at 1599:3–9. The League does not ask whether voters have their mail ballots in

their possession, Tr. at 1600:6–16, but it is likely that some voters will bring their ballots to such

events. These events almost always occur when mail-ballots have been sent out because “that’s

when people are most interested in learning about candidates and what’s on the ballot.” Tr. at

1599:17–21.

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23. Volunteers at the League’s in-person outreach events often receive token gifts for

their efforts, including pens, stickers, refreshments, free parking, and certificates of participation

or letters of recommendation. Tr. at 1598:6–22, 1601:18–1602:1.

The LULAC Plaintiffs

League of United Latin American Citizens

24. The League of United Latin American Citizens (“LULAC”) is a national Latino

civil rights organization founded in 1929 in Corpus Christi, Texas. Tr. at 1632:9–11. 12 The group

has approximately 4,000 to 5,000 dues-paying members within Texas, as well roughly 80,000 to

90,000 “eMembers” in the state. There are 30 to 40 LULAC councils in Texas, including in Dallas,

San Antonio, Houston, and El Paso. Tr. at 1634:6–20, 1637:3–7.

25. LULAC’s mission is “to improve the lives of Latino families throughout the United

States” and “to protect their civil rights in all aspects.” Tr. at 1633:10–18. Promoting the right to

vote is “crucial” to LULAC’s mission because when Latinos are “allowed to vote, they are able to

choose candidates of their choice” who “will stand and work on issues that are important to them.”

Tr. at 1645:4–15.

26. LULAC has volunteers that engage in voter registration and GOTV efforts every

year. Tr. at 1645:23–1646:5. These efforts often focus on community members who face greater

challenges when voting, including elderly Latinos and those who do not speak or write English.

Tr. at 1649:7–24. Accordingly, LULAC has historically run a voter assistance program for seniors,

including many who are not literate or have physical disabilities. Tr. at 1654:20–1655:5.

12
LULAC has approximately 4,000 to 5,000 dues-paying members within Texas, as well roughly 80,000 to 90,000
“eMembers” in the state. Tr. at 1637:3–7. There are 30 to 40 LULAC Councils in Texas, including in Dallas, San
Antonio, Houston, and El Paso. Tr. at 1634:6–20, 1637:3–7.

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27. LULAC’s members and volunteers who participate in these GOTV and voter

assistance efforts often receive food and drink, gas credit, or other tokens of appreciation for their

efforts. Tr. at 1655:19–1656:10, 1656:11–18.

Texas AFT

28. Texas AFT (“AFT”) is a 501(c)(5) designated labor union representing K-12 public

school employees and higher education employees in Texas, Tr. at 920:16–20, with about 66,000

members across the state. Tr. at 920:16–20.

29. AFT’s mission is to advocate for increased funding for public schools, for

programming that treats children as holistic individuals and seeks to remove external barriers to

receiving a high-quality education, and for capping class sizes at a reasonable number so that all

students get appropriate attention from their teacher. Tr. at 922:2–22. To advance its mission, AFT

also participates in the political process by regularly engaging with its membership about the

candidates and issues that best align with the organization’s values. Tr. at 923:2–15.

30. Prior to S.B. 1, AFT’s primary way of communicating with its members about

advocacy issues and endorsed candidates was door-knocking. Tr. at 924:13–20. AFT members

would typically knock on the doors of fellow union members, introduce themselves, and then

discuss the issues and candidates that the organization was endorsing and why. Tr. at 926:5–10.

31. While these conversations between members and AFT block-walkers would unfold,

members would sometimes have their ballots with them, either because they were home and had

questions about how to fill them out or because they were gathering with other members to fill out

their ballots as a group. Tr. at 927:21–23.

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32. Some of the members who would engage in this type of door knocking or “block-

walking” for AFT are paid staff members. Tr. at 929:6–930:5. Others are volunteers who would

receive benefits such gas and meal cards in exchange for their work. Tr. at 929:6–24.

Texas Alliance for Retired Americans

33. Texas Alliance for Retired Americans (“TARA”) is the Texas state member of the

National Alliance for Retired Americans, an organization with 4.5 million members that works on

issues that affect seniors and retirees. Tr. at 1761:4–10. TARA itself has chapters throughout Texas,

including in Dallas, Fort Worth, Austin, Houston, San Antonio, Corpus Christi, Beaumont, and

Port Arthur. Tr. at 1761:14–18.

34. TARA educates and mobilizes its members and volunteers around issues impacting

seniors, including the government pension offset for social security and the expansion of Medicaid

within Texas. Tr. at 1762:8–19. TARA is non-partisan organization, but it does engage in issue

advocacy and endorses local and state candidates based on their positions on issues relevant to

TARA. Tr. at 1764:3–10. It also advocates for or against ballot measures impacting TARA’s areas

of concern. Tr. at 1764:3–10.

35. To advance its views on these issues, TARA hosts monthly chapter meetings across

Texas with members. Tr. at 1762:20–1763:4. TARA holds rallies and community events to promote

its views, and also uses social media and email to educate its members and the public. Tr. at

1762:20–1763:4.

36. TARA’s voter advocacy relies primarily on the efforts of its sole paid field

organizer, Judy Bryant, who testified on behalf of TARA at trial. Tr. at 1763:16–18.

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The LUPE Plaintiffs

La Union Del Pueblo Entero

37. La Union Del Pueblo Entero (“LUPE”) is a non-partisan, membership organization

headquartered in San Juan, Texas, with members primarily in Hidalgo, Cameron, Willacy, and

Starr Counties, Texas. Tr. at 58:13–16.

38. LUPE organizes its approximately 8,000 members and other colonia residents on

issues that affect low-income neighborhoods, including drainage, lighting, paved roads, safety,

emergency services, trash pickup, among others. Tr. at 88:8–24.

39. In recent years, LUPE’s primary organizing focus has been civic engagement and

educating voters about their right to vote. Tr. at 60:10–61:2. LUPE relies on paid staff members,

temporary paid canvassers, and volunteers to engage with voters in-person. Tr. at 88:1–7.

40. LUPE members speak to voters on issues promoted by LUPE, including urging

voters to support certain non-partisan ballot measures. Tr. at 88:1–24. LUPE has supported ballot

measures, including a drainage bond, the creation of a health care district in Hidalgo County,

increased broadband access in South Texas, Tr. at 88:8–89:18, and plans to advocate for other

ballot measures in the future. Tr. at 88:25–89:16.

41. LUPE staff and canvassers advocate for its support of any ballot measures in a

variety of settings, including when meeting with community members in neighborhoods, at LUPE

events, at union halls, and in the LUPE offices. Tr. at 89:7–18. Speaking to voters at their homes

is an essential part of LUPE’s activities because it ensures that hard-to-reach voters in the colonias

have the information they need to vote to improve their communities. Tr. at 3686:1–20.

42. While canvassing neighborhoods in support of ballot measures, LUPE organizers

have been invited into voters’ homes and asked for assistance with voters’ mail-in ballots. Tr. at

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71:1–72:15, 75:11–75:17, 119:20–120:18. LUPE members also often bring mail ballots to

meetings at LUPE offices and union halls. Tr. at 90:4–24.

43. LUPE staff members and volunteers have been asked for assistance with voting by

mail and in-person at the polls by elderly and disabled voters, and have provided such assistance.

See Tr. at 145:16–20, 145:25–146:4, 150:9–13, 150:19–151:2, 157:14–158:9.

44. LUPE often provides its volunteers with t-shirts or gas cards, particularly because

there is little public transportation in the Rio Grande Valley. Tr. at 122:3–19.

Mexican American Bar Association of Texas

45. The Mexican American Bar Association of Texas (“MABA”) is a volunteer-based

professional membership association of Latino lawyers across Texas with approximately 500

members. Tr. at 2533:20–23, 2535:9–10.

46. Although MABA is non-partisan, it routinely encourages voters to support a

candidate or measure. Tr. at 2535:19, 2542:6–8.

47. MABA engages in voter outreach and education by tabling at local community

events, such as candidate forums. Tr. at 2535:21–2536:5. MABA members also provide voter

assistance. See, e.g., Tr. at 2539:3–4. Members are concerned that they are committing a crime if

they accept meals, gas cards, swag or other forms of compensation while performing these

activities. Tr. at 2542:6–20.

Defendants 13

48. Collectively, Plaintiffs have sued the Attorney General and Secretary of State of

Texas (together, the “State Defendants”), and the district attorneys of Travis County, Dallas

13
Over the course of the litigation, several Defendants have been substituted pursuant to Federal Rule of Civil
Procedure 25(d).

16
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County, and Hidalgo County, and 34th Judicial District, which includes El Paso, Culberson, and

Hudspeth Counties (collectively, the “DAs” or “County DAs”). 14

The Texas Attorney General

49. Plaintiffs sue Defendant Ken Paxton in his official capacity as the Attorney General

of the State of Texas (the “AG”).

50. The AG has statutory duties for certain aspects of Section 7.04’s enforcement

scheme. Stephens did not alter the authority of the AG to investigate allegations of election-related

crimes, and, in some cases, the Office of the Attorney General (“OAG”) considers certain

investigative duties to be “statutorily required” or “mandatory” for election-related allegations. Tr.

at 4041:18–4042:25; see, e.g., TEC § 273.001 (providing that the AG “shall investigate”

allegations of election crimes in elections covering more than one county). The AG may also

“direct the county or district attorney . . . to conduct or assist the attorney general in conducting

the investigation.” See TEC § 273.002(1) (emphasis added); see also id. § 273.001 (district

attorneys must investigate alleged violations referred to them).

51. The AG has demonstrated a willingness to enforce the Canvassing Restriction, and

has actually enforced, the Election Code, including S.B. 1. Tr. at 3909:8–17, 3913:9–3914:16.

52. The AG publicly maintains that one of his key priorities is to investigate and

prosecute allegations of voter fraud. See, e.g., OCA-384, OCA-385, OCA-386. The OAG

continues to operate the Criminal Prosecutions Division unit that prosecutes election-related

allegations, known as the Election Integrity Division. Tr. at 3903:23–3905:4, 3905:11–15,

14
Although the LULAC Plaintiffs’ SAC names local election officials as Defendants to their free speech claims, see
ECF No. 207 at 57, their proposed findings of fact and conclusions of law do not argue that any local election officials’
have a role in enforcing the Canvassing Restriction, see ECF No. 849. The Court thus considers the LULAC Plaintiffs
to have waived any such argument and will dismiss their undeveloped claims seeking to enjoin local election officials
from enforcing the Canvassing Restriction.

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4039:14–19. As of March 17, 2023, the OAG had identified at least one investigation of a possible

violation of the Canvassing Restriction. 15 See LULAC-86 at 6.

53. Before Stephens, the OAG regularly prosecuted election crimes, including alleged

vote-harvesting schemes, in counties across Texas. See OCA-377 (showing 401 counts—not

cases—of election crimes prosecuted by the OAG, alone or in conjunction with local prosecutors,

between 2005 and 2022).

54. Even after Stephens, Jonathan White, former Chief of the OAG Election Integrity

Division, testified that the “vote harvesting” schemes (purportedly targeted by the Canvassing

Restriction) remain among the three most common elections-related allegations that the OAG

pursues. Tr. at 3915:3–8. For the November 2022 elections, the OAG established a 2022 General

Election Integrity Team and publicly stated it was “prepared to take action against unlawful

conduct where appropriate,” highlighting offenses related to “vote harvesting.” OCA-383.

55. Although the AG may no longer unilaterally prosecute allegations of election-

related crimes, Stephens, 663 S.W.3d at 51–55, the OAG enforces criminal election offenses

through other mechanisms. After OAG investigations conclude, the OAG refers cases to local

prosecuting attorneys 16 and often seeks opportunities to partner with DAs to prosecute such

allegations through deputization by a DA or appointment pro tem by a district judge or the DA.

Tr. at 3908:21–3909:17, 3909:1–12; 4043:21–4045:21; 4051:2–10.

15
There may very well be additional investigations that the DA failed to produce during discovery. Throughout this
litigation, the OAG has, invoking the investigative privilege, withheld documents discussing “actual or alleged illegal
voting, election fraud, or other criminal conduct in connection with” voting and voter assistance. See ECF No. 992-3;
ECF No. 992-16; In Re U.S. Dep’t of Homeland Sec., 459 F.3d 565, 568–69, n.2 (5th Cir. 2006) (the investigative
privilege, also known as the “law enforcement privilege,” protects government documents relating to an ongoing
criminal investigation from release).
16
For example, after the prosecution of Hervis Rogers was dismissed in Montgomery County, the OAG referred the
case to the Harris County DA, who brought charges against Mr. Rogers before a grand jury. Tr. at 4058:17–4059:24,
4062:7–12. The same procedure was used in the prosecution of Ignacio González Beltrán, whose case was dismissed
in Montgomery County and referred by the OAG to Harris County, where it was presented to a grand jury. Tr. at
4063:3–4064:6.

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56. The OAG has specifically identified previous prosecutions in which it participated,

including prosecutions for “vote harvesting” and prosecutions conducted by or with the assistance

of local DAs in the following counties: Nolan County, Limestone County, Hidalgo County, Harris

County, Navarro County, Brewster County, Gregg County, and Starr County. See OCA-377.

The Texas Secretary of State

57. The LUPE Plaintiff seek to enjoin Jane Nelson, the Secretary of State (the

“Secretary”) from enforcing the Canvassing Restriction.

58. The Secretary routinely collaborates with the OAG to enforce election laws in

accordance with her mandatory duties under the Election Code. Tr. at 3913:9–19, Tr. at 4054:16–

4055:8.

59. Under the Election Code, the Secretary must evaluate information she “receiv[es]

or discover[s]” about potential election crimes and, if she “determines that there is probable cause

to suspect that criminal conduct occurred, the [S]ecretary shall promptly refer the information to

the attorney general” and provide all pertinent documents and information in his possession to the

AG. TEC § 31.006 (emphasis added).

60. In this capacity, the Secretary serves as “a gathering point for election complaints

from individuals and election officials.” Tr. at 3913:12–19. The Secretary logs each complaint

received. Tr. at 4326:23–4327:2. Sometimes, the Secretary will also ask the complainant for

additional information. Tr. at 1876:24–1879:21. Ultimately, the Secretary must determine whether

the information in her possession satisfies the probable cause standard. Tr. at 1881:1–9. “If it’s a

close call, [the Secretary of State’s Office] refer[s] it anyways, because it’s better to err on the side

of making sure that crimes are prosecuted.” Tr. at 1877:14–21.

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61. The Secretary has received allegations related to mail ballot “vote harvesting,”

which she has referred to the OAG both before and after the passage of S.B. 1. Tr. at 1914:1–6.

The County DAs

62. Plaintiffs have sued the District Attorneys of several counties in Texas (the “DAs”

or “County DAs”) in their official capacity to enjoin them from enforcing Section 7.04’s

Canvassing Restriction.

63. The OCA Plaintiffs seek injunctive relief against the Travis County DA. See ECF

No. 200. The LULAC Plaintiffs name the DAs of Travis, Dallas, and Hidalgo Counties as

Defendants. See ECF No. 207. The LUPE Plaintiffs seek injunctive relief against the DAs of Travis

County, Dallas County and the 34th Judicial District, which includes El Paso, Culberson, and

Hudspeth Counties. See ECF No. 208.

64. Every County DA other than the DA for the 34th Judicial District executed a

stipulation stating that he or she had not (1) adopted a policy refusing to prosecute crimes under

S.B. 1, (2) instructed law enforcement to refuse to arrest individuals suspected of criminal conduct

under S.B. 1, or (3) permitted an assistant DA to take either of the foregoing actions. See ECF No.

753-6 (Travis) ¶¶ 3–6; ECF No. 753-7 (Dallas) ¶¶ 3–4; ECF No. 753-13 (Hidalgo) ¶¶ 3–6. For his

part, the DA of the 34th Judicial District agreed not to enforce the provisions challenged by the

LUPE Plaintiffs during the pendency of this action but stipulated that he has the authority to

enforce crimes under the Election Code, would be free to do so at any time, and intended to fulfill

his duty to enforce election crimes, subject to his prosecutorial discretion. ECF No. 753-8 ¶¶ 5–7.

65. A newly enacted law House Bill 17 (“H.B. 17”) curbs DAs’ authority to adopt a

policy against enforcing crimes under the Election Code. H.B. 17, which went into effect on

September 1, 2023, provides that DAs may be removed from office if they adopt any policy that

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“prohibits or materially limits the enforcement of any criminal offense.” H.B. 17 § 1 (adding TEX.

LOC. GOV’T CODE § 813(B)).

IMPACT OF THE CANVASSING RESTRICTION

There is widespread confusion about how to interpret the Canvassing Restriction

66. The Canvassing Restriction applies toanyone who knowingly gives or receives

some “compensation or other benefit” for an “in-person interaction with one or more voters, in the

physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a

specific candidate or measure.” TEC § 276.015(a)(2).

67. Trial testimony establishes that there is widespread confusion about the meaning of

the Canvassing Restriction. Even local election administrators (“EAs”) are unsure about how to

interpret Section 7.04. See, e.g., Tr. at 496:5–8 (Dallas County EA Michael Scarpello) (“I don’t

know what ballot harvesting means,” “it could be interpreted a lot of different ways based on the

definition . . . put into the law.”); Tr. at 844:1–12 (former Travis County EA Dana DeBeauvoir)

(pointing out that the Canvassing Restriction criminalizes “paying someone to encourage people

to vote for a measure” but not against that same measure).

68. Witnesses were particularly uncertain about how to interpret the terms

“compensation” and “physical presence”—neither of which is defined in the statute—and how

Section 7.04 impacts organizers’ ability to provide voting assistance.

69. Despite this confusion, state officials have not offered any definitive answers about

the scope of the Canvassing Restriction. The Secretary of State has not provided any guidance. Tr.

at 1914:7–14, 1924:7–18. Nor has the OAG. Tr. at 1924:24–1925:3.

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70. At trial, the State Defendants’ witnesses attempted to clarify the meaning of the

Canvassing Restriction, but their testimony only underscored the potential for disagreement about

what kind of conduct Section 7.04 proscribes.

Confusion about the meaning of “compensation or other benefit”

71. Plaintiffs are uncertain whether providing volunteers food, beverages, gas cards,

bus fare, letters of recommendation, or academic credit to volunteers for their advocacy work is

unlawful because “compensation” is not defined in the Election Code and benefit is merely defined

by a synonym. TEC § 276.015(a)(1) (defining “benefit” as “anything reasonably regarded as a

gain or advantage”). For example, MABA members, all of whom are attorneys, worry that a bottle

of water could be considered “compensation.” Tr. at 2544:9–43.

72. They also worry that their voter outreach activities could expose voters to criminal

liability if they offer door-to-door canvassers refreshments, for example. See Tr. at 1592:1–5 (“It’s

not just my concern for the League members, but it’s also a concern if just a voter that were helping

provides compensation, or the place that they live provides compensation of some type that they

may be committing a crime.”). AFT has cautioned its members that they should not complete their

ballots at meetings in its offices because the free use of its facilities and other resources could be

construed as a “compensation or other benefit.” Tr. at 928:1–9.

73. Former Election Division Director Keith Ingram testified that providing volunteers

with bus fare was not “compensation” because “[t]hey can get their expenses reimbursed. That’s

not payment.” Tr. at 1904:1–2. 17 In contrast, the State’s chief voter fraud prosecutor, Jonathan

White, stated that he would need to perform legal research to determine what kinds of economic

17
Mr. Ingram was interpreting the term “compensation” in connection with S.B. 1 § 6.06, which prohibits
compensation for mail-ballot assistance, but nothing in his testimony suggests that he would apply a different meaning
to the word as it is used in S.B. 1 § 7.04, which, again, is not defined.

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benefits would violate the provision. Tr. at 3992:20–3993:21 (conceding that he would need to

“review[] the case law” to determine whether a meal, bus fare, or a gift bag containing a t-shirt

constitute prohibited compensation).

Confusion about the meaning of “physical presence”

74. Plaintiffs worry about liability for canvassing in the “physical presence” of a mail

ballot because their members have historically brought their ballots to candidate forums, town hall

meetings, and other in-person events at community centers, union halls, and people’s homes.

75. Because “physical presence” is not defined in Section 7.04, Plaintiffs are unsure

how physically proximate a ballot must be to a volunteer or employee to violate the Canvassing

Restriction and risk exposure to a decade in prison.

76. Indeed, trial witnesses were afraid of criminal liability for inadvertently advocating

for a ballot measure in conversations with voters who happened to have a mail ballot in their

possession. See, e.g., Tr. at 1780:17–1781:4 (TARA’s organizational representative, Judy Bryant,

suggesting that a ballot might be concealed in a voter’s backpack or purse during the conversation).

77. At trial, Mr. Ingram refused to offer a specific distance or any concrete guidance

about how canvassers should determine whether they are in the “physical presence” of a mail

ballot, which can only be determined on a case-by-case basis. See Tr. at 1917:5–14; see also Tr. at

1916:1–4 (stating that the Secretary does not have an official opinion on whether a ballot being

within five or ten feet of a discussion constitutes physical presence under Section 7.04). “Whether

or not a prosecutor agrees with us,” he conceded, “is a different story entirely.” Tr. at 1917:18–19.

Confusion about canvassers’ ability to provide voting assistance

78. County election officials agreed that Section 7.04 could interfere with community

organizers’ ability to assist voters with their mail-ballots because its prohibition on “in-person

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interactions” in the “presence of a mail ballot” does not include an exception for mail-ballot

assistance. See Tr. at 758:8–19, 758:22–759:12 (Cameron County EA Remi Garza); Tr. at 841:15–

842:9, 844:13–25 (DeBeauvoir); Tr. at 496:2–8 (Scarpello).

79. Mr. White testified that if his office encountered a GOTV group that paid its

organizers to provide mail ballot assistance as a public service while canvassing, he would be

concerned that this activity is a subterfuge for voter fraud. Tr. at 3995:11–24. He acknowledged,

however, that prior to S.B. 1, the Election Code already criminalized: assisting a voter who is not

eligible for assistance or did not ask for assistance; voting a ballot differently than the voter wished

or directed the assistant to vote the ballot; suggesting to the voter during the voting process how

the voter should vote, or attempting to influence or coerce the voter receiving assistance. Tr. at

3923:21–3924:14, 3925:4–6.

The Canvassing Restriction has chilled Plaintiffs’ in-person interactions with voters

80. Plaintiffs and their members cannot determine from the text of TEC § 276.015

whether the Canvassing Restriction prohibits their organizations’ routine voter engagement

activities. This ambiguity has chilled Plaintiffs’ willingness to conduct in-person community

events and political outreach to voters where a mail-in-ballot might be present, including events

where Plaintiffs’ members have historically provided (and received) voting or language assistance.

81. To avoid putting staff members and volunteers in legal jeopardy under the

Canvassing Restriction, Plaintiffs and their members have limited their in-person interactions with

voters in the weeks before elections, when voters are most likely to have mail ballots in their

possession—and when Plaintiffs’ speech is most likely to be effective. Tr. at 1766:15–23 (TARA’s

mission has been severely impacted by the restrictions during the early voting period because voter

engagement and advocacy efforts are most critical in the weeks leading up to an election); Tr. at

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1599:17–21 (The League hosts events in the weeks before elections, “when people are most

interested in learning about candidates and what’s on the ballot.”).

82. For example, Judy Bryant, TARA’s sole paid field organizer, is no longer willing to

“accept or set up any tabling invitations or events” once “mail ballots go out” because she does

not want to take the chance of a person “having a mail ballot” when she advocates on behalf of

TARA. Tr. at 1765:24–1766:5. As a result, Ms. Bryant plans to cease any in-person advocacy “after

the first week in October” before an election “because mail ballots are generally going out by that

time in most counties.” Tr. at 1766:6–9. But for S.B. 1, Ms. Bryant would engage in this work

“right up to and including Election Day.” Tr. at 1766:10–14.

83. Similarly, prior to S.B. 1, Deborah Chen, OCA’s civic engagement programs

director, personally provided language assistance to LEP voters who brought their mail-in ballots

to OCA’s candidate forums. Tr. at 1697:13–18. Ms. Chen has been unwilling to assist voters since

S.B. 1 was enacted, due to the threat of criminal liability. Tr. at 1726:21–1727:6.

84. Ms. Bryant and Ms. Chen are not alone their decisions to restrict their in-person

voter outreach activities due to threat of criminal sanctions under the Canvassing Restriction:

• OCA has stopped hosting in-person events where members have

historically brought mail-in ballots and received voting assistance,
include candidate forums, Tr. at 1718:20–24, and no long offers voters
assistance or rides to the polls, Tr. at 1722:3–16. OCA is especially
worried about exposing its student volunteers to criminal charges, since
one of its missions is to educate and develop a pool of future leaders. Tr.
at 1721:2–10, 1721:11–1722:22.

• The League determined that it “would turn away members with their
mail-in ballots from candidate forums.” Tr. at 1620:7–1621:1

• LUPE planned to advocate on a number of measures in the November

2023 Constitutional Amendment election but trained its staff not to
advocate on the ballot measures in the presence of a mail ballot. Tr. at
3681:6–3682:8.

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• MABA members are no longer willing to provide voting assistance

because members fear that they might inadvertently commit a crime,
potentially costing them their law licenses. Tr. at 2543:14–2544:23.

• LULAC volunteers “scaled . . . down” their GOTV efforts and decided

not to conduct voter outreach with seniors, many of whom require
voting assistance, for “fear that they could be subject to prosecution if
they help seniors vote by mail.” Tr. at 1655:10–18.

• AFT has shifted its voter engagement efforts away from block-walking
to communicating with voters over the phone, video, and text message.
Tr. at 924:21–925:12–14, 928:17–929: 3, 934:7–21, and must train its
remaining block-walkers and temporary paid organizers to limit their
interactions with voters to avoid criminal penalties, Tr. at 928:2–9.

85. Plaintiffs have found that alternative methods of communication are much less

effective at reaching voters—during the precise time when their speech is most critical. See Tr. at

1720:9–15 (describing attendance at OCA’s virtual candidate meet-and-greet in spring 2022 as

“fairly abysmal” compared to previous, in-person meet-and-greets); Tr. at 930:11–21 (noting that

AFT’s outreach to voters by phone and text and video detracted from the “quality of the

conversations” AFT was able to have with voters). As Ms. Bryant explained, “the closer you can

do some education and information sharing the closer to the time of someone voting” the more

effective it will be, “because people tend to forget or not be familiar with an issue” and speaking

with them “closer to actually [] voting makes a big difference.” Tr. at 1766:15–23.

86. Uncertainty about how to comply with S.B. 1’s provisions, including the

Canvassing Restriction, and fear of potential criminal liability have also impaired Plaintiffs’ ability

to recruit members and chilled existing members’ willingness to volunteer with the Plaintiff

organizations. MABA, for example, is finding it harder to recruit volunteers to educate and assist

voters because of S.B. 1 because members fear that they might inadvertently commit a crime and

risk their law licenses by accepting meals, gas cards, swag or other forms of compensation while

tabling at community events or providing voter assistance. See Tr. at 2543:14–2544:16, 2553:11,

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2542:6–20. AFT’s members are likewise less willing to volunteer with the organization because

they are uncertain about how to comply with the law. Tr. at 934:7–21.

CONCLUSIONS OF LAW

SUBJECT MATTER JURISDICTION

This Court has subject matter jurisdiction pursuant to 28. U.S.C. § 1331, which provides

that “district courts shall have original jurisdiction of all civil actions arising under the . . . laws . .

. of the United States.”

This Court has jurisdiction to grant declaratory and injunctive relief pursuant to 28 U.S.C.

§§ 2201 and 2202.

Plaintiff’s Claims fall within the Ex parte Young Exception to Sovereign Immunity

The State Defendants reassert their affirmative defense that, as to the Secretary and the AG,

Plaintiffs’ constitutional challenges to the Canvassing Restriction are barred by sovereign

immunity. See ECF No. 862 at 21–26. Because the Election Code imposes particular enforcement

duties upon both the AG and the Secretary and both Defendants have demonstrated a willingness

to enforce the Canvassing Restriction, however, the Court concludes that Plaintiffs’ claims fall

within the Ex Parte Young exception to sovereign immunity. The County DAs do not assert that

they are entitled to sovereign immunity. 18

18
The Court recently dismissed all constitutional claims against Harris County DA Kim Ogg as barred by Eleventh
Amendment immunity in accordance with the Fifth Circuit’s ruling and mandate issued in Mi Familia Vota v. Ogg,
105 F.4th 313 (5th Cir. 2024). See ECF No. 1147.
The remaining DAs have not argued that they are entitled to sovereign immunity in this action. Instead, they have
stipulated that (1) they are responsible for investigating and prosecuting violations of the Canvassing Restriction and
(2) they do not intend to refrain from enforcing the Canvassing Provision absent an injunction in this case. See ECF
No. 753-6 (Travis) ¶¶ 3–6; ECF No. 753-7 (Dallas) ¶¶ 3–4; ECF No. 753-13 (Hidalgo) ¶¶ 3–6; ECF No. 753-8 ¶¶ 5–
7 (34th Judicial District). Moreover, the DA of 34th Judicial District sought—and received—permission to be excused
from participation in this case and agreed not to enforce the criminal provisions challenged by the private Plaintiffs
during the pendency of the case. See ECF No. 356; Text Order dated Apr. 11, 2022.
Although district courts may raise the question of sovereign immunity sua sponte, Fifth Circuit precedent suggests
that their authority to do so is discretionary. See Carver v. Atwood, 18 F.4th 494, 497 (5th Cir. 2021) (holding that the

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Legal Standard

State sovereign immunity under the Eleventh Amendment generally precludes suits against

state officials in their official capacities. City of Austin v. Paxton, 943 F.3d 993, 997 (2019). The

Ex parte Young exception to state sovereign immunity, however, allows private parties to bring

“suits for injunctive or declaratory relief against individual state officials acting in violation of

federal law.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (citing Ex parte Young, 209

U.S. 123, (1908)).

“Ex parte Young is a ‘necessary exception’ to sovereign immunity, preventing state officials

from using their state’s sovereignty as a shield to avoid compliance with federal law.” Planned

Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 451 (5th Cir. 2022) (quoting P.R. Aqueduct

district court “could sua sponte dismiss [a] complaint” based on sovereign immunity) (emphasis added). The Court
declines to exercise its discretion with respect to the remaining County DAs here, for two reasons.
First, Fifth Circuit law addressing whether and when Eleventh Amendment immunity extends to local officials is
unsettled. For example, in January 2024, the panel in National Press Photographers Association v. McCraw declined
to extend Eleventh Amendment immunity to a county prosecutor charged with enforcing the challenged state statutes
“because ‘state sovereign immunity applies only to states and state officials, not to political subdivisions like counties
and county officials.” 90 F.4th 770, 787 (5th Cir. 2024) (emphasis added). As the panel went onto explain:
[W]e have held that Texas district attorneys are not protected by the Eleventh Amendment
precisely because they are county officials, not state officials. Granted, a couple of
unpublished opinions have suggested that a district attorney’s entitlement to Eleventh
Amendment immunity may depend on whether he or she is performing in a local or state
capacity. But we understand our precedent to employ a more categorical approach,
informed by various factors that [the DA] does not otherwise argue support his position
that he is protected by the Eleventh Amendment.
Id. (quotations, citations, and alteration marks omitted) (citing Clark v. Tarrant County, 798 F.2d 736, 744–45 (5th
Cir. 1986) (enumerating six factors that courts should consider in determining whether an entity is entitled to Eleventh
Amendment immunity)).
Nonetheless, only five months after McCraw, the Ogg panel assumed that the Harris County DA could assert state
sovereign immunity, without addressing McCraw or engaging with any of the factors set forth in Clark. See generally
Ogg, 105 F.4th at 325–33. Nor did the panel offer any guidance about the how H.B. 17’s restrictions on prosecutorial
discretion should impact the duty analysis under Ex parte Young. See id.
Second, directing the County DAs to submit evidence and briefing on the question of their sovereign immunity would
only serve to defeat one of the central purposes of their stipulations and of the doctrine of sovereign immunity itself:
to preserve government resources. See Ogg, 105 F.4th at 324 (“[B]oth parties correctly highlight the costs and
consequences of litigation when considering whether sovereign immunity applies[.]”); cf. Int’l Truck & Engine Corp.
v. Bray, 372 F.3d 717, 720 n.4 (5th Cir.), opinion corrected on denial of reh'g, 380 F.3d 231 (5th Cir. 2004) (finding
waiver where defendant waited until after summary judgment to raise sovereign immunity).

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& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)). The rule is based on the legal

fiction that a sovereign state cannot act unconstitutionally. Young, 209 U.S. at 159. Thus, where a

state actor enforces an unconstitutional law, he is stripped of his official clothing and becomes a

private person subject to suit. Id. at 160.

The Supreme Court has counseled that, “[i]n determining whether the doctrine of Ex parte

Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward

inquiry’ into whether [the] complaint alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.

635, 645 (2002) (alterations on original) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

261, 296 (1997) (O’Connor, J., joined by Scalia and Thomas, JJ., concurring in part and concurring

in judgment)). The Supreme Court has also made clear that, for the Ex parte Young exception to

apply, the state official, by virtue of his office, must have “some connection with the enforcement”

of the challenged law. Young, 209 U.S. at 157.

Despite the straightforward inquiry that the Supreme Court envisioned, the Fifth Circuit

has acknowledged that its own decisions “are not a model of clarity on what ‘constitutes a

sufficient connection to enforcement.’” Tex. Democratic Party v. Abbott (Tex. Democratic Party

I), 961 F.3d 389, 400 n.21 (5th Cir. 2020) (quoting City of Austin, 943 F.3d at 999). Nevertheless,

the Fifth Circuit has articulated some general rules. For instance, the Fifth Circuit has stated that

“it is not enough that the official have a ‘general duty to see that the laws of the state are

implemented.’” Id. at 400–01 (emphasis in original) (quoting Morris v. Livingston, 739 F.3d 740,

746 (5th Cir. 2014)). The Fifth Circuit has also determined that “[i]f the official sued is not

statutorily tasked with enforcing the challenged law, then the requisite connection is absent and

our Young analysis ends.” Id. at 401 (quotation marks and citation omitted). “Moreover,”

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according to the Fifth Circuit, “a mere connection to a law’s enforcement is not sufficient—the

state officials must have taken some step to enforce.” Id.

The Fifth Circuit has further explained that plaintiffs must at least “show the defendant has

‘the particular duty to enforce the statute in question and a demonstrated willingness to exercise

that duty.’” Tex. Democratic Party v. Abbott (Tex. Democratic Party II), 978 F.3d 168, 179 (5th

Cir. 2020) (quoting Morris, 739 F.3d at 746). Put differently, the state “official must be ‘statutorily

tasked with enforcing the challenged law[,]’” id. (quoting In re Abbott, 956 F.3d 696, 709 (5th Cir.

2020), cert. granted, judgment vacated sub nom. Planned Parenthood Ctr. for Choice v. Abbott,

141 S. Ct. 161 (2021)), though whether the particular duty to enforce the statute in question “arises

out of the general law, or is specially created by the [statute] itself, is not material so long as it

exists[,]” Young, 209 U.S. at 157.

“Enforcement typically means ‘compulsion or constraint.’” Tex. Democratic Party II, 978

F.3d at 179 (quoting K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)). The definition extends

beyond the “type of direct enforcement found in Ex Parte Young, for instance, where the attorney

general threatened civil and criminal prosecution.” Book People, Inc. v. Wong, 91 F.4th 318, 335

(5th Cir. 2024) (quoting Air Evac EMS, 851 F.3d at 519. “[S]uch enforcement is not required.” Id.

“A ‘scintilla of “enforcement” by the relevant state official with respect to the challenged law’ will

do.” Tex. Democratic Party II, 978 F.3d at 179 (quoting City of Austin, 943 F.3d at 1002). In short,

“if an ‘official can act, and there’s a significant possibility that he or she will . . . , the official has

engaged in enough compulsion or constraint to apply the Young exception.’” Tex. Democratic

Party I, 961 F.3d at 401 (emphasis in original) (quoting City of Austin, 943 F.3d at 1002).

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Analysis

To begin, the State Defendants each have particular enforcement duties under the Election

Code. Whether the defendant has the “particular duty” to enforce the challenged law is different

than whether there is a “demonstrated willingness” of enforcement. See Mi Familia Vota, 105 F.4th

at 325. To demonstrate a “particular duty,” Ex parte Young requires neither a history of

enforcement nor a statutory requirement of enforcement. City of Austin, 943 F.3d at 1001; Air Evac

EMS, Inc. v. Tex. Dep't of Ins., Div. of Workers’ Comp., 851 F.3d 507, 519 (5th Cir. 2017); Tex.

Democratic Party v. Abbott, 961 F.3d 389, 401 (5th Cir. 2020).

The Election Code provides that the AG “shall investigate” allegations of election crimes

in elections covering more than one county. TEC § 273.001(a); see also Garza v. Harrison, 574

S.W.3d 389, 402 (Tex. 2019) (noting that, under Texas law, “[t]he term ‘shall,’ . . . ‘imposes a

duty.’”) (quoting TEX. GOV’T CODE § 311.016(2)). Allegations of vote-harvesting against the

Plaintiff organizations are especially likely to be investigated by the AG because each of them

operates in multiple counties in Texas. The AG may also investigate potential election crimes on

its own initiative, TEC § 273.001(b), but also has the power to compel local prosecutors to

investigate such allegations. See TEC § 273.002(b).

Likewise, the Election Code provides that the Secretary “shall promptly refer” information

establishing probable cause to believe that an election crime has occurred to the AG” and “provide

all pertinent documents and information in his possession to the AG.” TEC § 31.006; see also TEC

§ 276.019 (“A public official or election official may not create, alter, modify, waive, or suspend

any election standard, practice, or procedure mandated by law or rule in a manner not expressly

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authorized by this code.”). 19 The AG, in turn, “may investigate” referrals from the Secretary. TEC

§ 273.001(d).

Whether the State Defendants’ enforcement is mandatory or discretionary speaks to a

“demonstrated willingness” to enforce the statute—not whether they have the “particular duty” to

enforce the Canvassing Provision. See Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th 770,

786 (5th Cir. 2024) (finding state agency heads with discretionary enforcement power had a

particular duty to enforce and noting that “[a]s heads of Texas law-enforcement agencies,

[defendants] have more than just the general duty to see that the state's laws are implemented—

they are directly responsible for enforcing Texas’s criminal laws”).

Here, the State Defendants have shown a desire to enforce the statute. Critically, neither

the AG nor the Secretary has disavowed enforcement. See Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383, 393 (1988) (“We are not troubled by the pre-enforcement nature of this suit. The

State has not suggested that the newly enacted law will not be enforced, and we see no reason to

assume otherwise.”); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979)

(“[T]he State has not disavowed any intention of invoking the criminal penalty . . . . Appellees are

thus not without some reason in fearing prosecution for violation of the ban[.]”). In the First

Amendment context, this is enough. See McCraw, 90 F.4th at 782 (“Unlike in other constitutional

19
The Court rejects the State Defendants’ argument that the Secretary has no enforcement duty because her title does
not appear in the Canvassing Provision itself. ECF No. 862 ¶ 23. Their position that Ex parte Young asks the Court to
read each provision in a vacuum, without reference to any other Election Code provision—no matter how relevant to
the enforcement question at hand—is entirely divorced from Fifth Circuit precedent, from the fundamental precepts
of statutory interpretation, and from common sense. “[R]easonable statutory interpretation must account for both ‘the
specific context in which . . . language is used’ and ‘the broader context of the statute as a whole.’” Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 321 (2014) (ellipsis in original) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997)). “[T]he cardinal rule [is] that a statute is to be read as a whole, since the meaning of statutory language, plain
or not, depends on context.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (citing Massachusetts v. Morash,
490 U.S. 107, 115 (1989)).

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contexts, in the speech context, we may assume a substantial threat of future enforcement absent

compelling contrary evidence.”) (internal citation and quotation omitted).

Beyond the AG’s refusal to disavow, the trial record makes clear that he does intend to

enforce the Canvassing Restriction. Jonathan White, former Chief of the OAG Election Integrity

Division, testified that the “vote harvesting” schemes (purportedly targeted by the Canvassing

Restriction) remain among the three most common elections-related allegations that the OAG

pursues. Tr. at 3915:3–8; see also LULAC-86 at 6 (identifying at least one OAG investigation of

a possible violation of the Canvassing Restriction as of March 17, 2023). The OAG has specifically

identified previous prosecutions in which it participated, including prosecutions for “vote

harvesting” and prosecutions conducted by or with the assistance of local DAs in multiple counties.

See OCA-377. The Secretary, for her part, has received allegations related to mail ballot “vote

harvesting,” which she has referred to the OAG both before and after the passage of S.B. 1. Tr. at

1914:1–6.

The State Defendants’ duties under the Election Code and scintilla of enforcement are

sufficient to establish that Plaintiffs’ constitutional challenges to the Canvassing Restriction fall

within the Ex parte Young exception to sovereign immunity. 20 Thus, the Court turns to the second

20
The Court observes that, even if these statements were insufficient to establish the required scintilla of enforcement,
it would be manifestly unfair to permit the State Defendants to pursue their sovereign immunity defense on this basis
given their repeated use of the “investigative privilege” to withhold investigative documents throughout this litigation.
See ECF No. 992-3 (OAG); ECF No. 992-16 (OAG); ECF No. 992-20 (SOS).
Under the sword-and-shield doctrine, “a party may not use privileged information both offensively and defensively at
the same time.” Willy v. Admin. Rev. Bd., 423 F.3d 483, 497 (5th Cir. 2005); Nguyen v. Excel Corp., 197 F.3d 200,
207 n.18 (5th Cir. 1999) (emphasizing “a client’s inability to, at once, employ the [attorney-client] privilege as both a
sword and a shield.”). As the Fifth Circuit has emphasized, allowing a party to do so “would be manifestly unfair to
the opposing party.” Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989).
Here, the State Defendants cannot rely on Mr. White’s testimony that that “vote harvesting” schemes remain among
the most common elections-related allegations that the OAG pursues as proof that the Canvassing Restriction serves
a compelling interest, Tr. at 3915:3–8, and at the same time argue, based on the dearth of documentary evidence of
allegations, that the OAG has no role in enforcing Section 7.04.

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component of subject matter jurisdiction challenged by the State Defendants: Plaintiffs’ standing

to challenge the Canvassing Restriction.

Plaintiffs have Standing to Challenge the Canvassing Restriction

Plaintiffs have established organizational standing to assert their constitutional challenges

to the Canvassing Restriction. Plaintiffs and their members are directly regulated by the

Canvassing Restriction and have chilled their speech due to a credible threat of enforcement by

the State Defendants and the County DAs. An order enjoining enforcement of the Canvassing

Restriction would remove the chill from their protected speech.

Legal Framework

It is well settled that a plaintiff invoking a federal court’s jurisdiction must establish

standing by satisfying three irreducible requirements. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

The elements of standing are “not mere pleading requirements but rather an indispensable

part of the plaintiff’s case.” Lujan, 504 U.S. at 561. Thus, “each element must be supported in the

same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner

and degree of evidence required at the successive stages of the litigation.” Id. In a case that

proceeds to trial, plaintiffs must establish all three elements by a preponderance of the evidence.

See TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (“[I]n a case like this that proceeds to

trial, the specific facts set forth by the plaintiff to support standing “must be supported adequately

by the evidence adduced at trial.”). These requirements ensure that plaintiffs have “such a personal

stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the

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presentation of issues upon which the court so largely depends for illumination.” Massachusetts v.

EPA, 549 U.S. 497 (2007) (quoting Baker v. Carr, 369 U.S. 186 (1962)) (quotation marks

removed).

“[P]laintiffs seeking injunctive and declaratory relief can satisfy the redressability

requirement only by demonstrating a continuing injury or threatened future injury” for the self-

evident reason that “injunctive and declaratory relief ‘cannot conceivably remedy any past

wrong.’” Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019) (quoting Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 108 (1998)).

To constitute an injury in fact, a threatened future injury must be (1) potentially suffered

by the plaintiff, not someone else; (2) “concrete and particularized,” not abstract; and (3) “actual

or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. at 720–21 (citations omitted). The injury must

be “imminent . . . to ensure that the alleged injury is not too speculative for Article III purposes.”

Id. at 721 (quoting Lujan, 504 U.S. at 564 n.2). For a threatened future injury to satisfy the

imminence requirement, there must be at least a “substantial risk” that the injury will occur.

Stringer, 942 F.3d at 721 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).

Nonetheless, “[t]he injury alleged as an Article III injury-in-fact need not be substantial; it need

not measure more than an identifiable trifle.” OCA-Greater Houston v. Texas, 867 F.3d 604, 612

(5th Cir. 2017) (quotations omitted). “This is because the injury in fact requirement under Article

III is qualitative, not quantitative, in nature.” Id. (quotations omitted).

Juridical entities may establish standing under an associational or organizational theory of

standing. OCA-Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017).

“Associational standing is a three-part test: (1) the association’s members would

independently meet the Article III standing requirements; (2) the interests the association seeks to

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protect are germane to the purpose of the organization; and (3) neither the claim asserted, nor the

relief requested requires participation of individual members.” Students for Fair Admissions, Inc.

v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2157 (2023) (quoting Hunt v. Wash. State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). Participation of individual members is not

required where, as here, the association seeks prospective and injunctive relief, rather than

individualized damages. Consumer Data Indus. Ass’n v. Texas, No. 21-51038, 2023 WL 4744918,

at *4 n.7 (5th Cir. July 25, 2023).

“By contrast, ‘organizational standing’ does not depend on the standing of the

organization’s members. The organization can establish standing in its own name if it ‘meets the

same standing test that applies to individuals.’” OCA-Greater Hous., 867 F.3d at 610 (citations

omitted) (quoting Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir.

1999)). An organization can establish a likely future injury if it intends “to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed by a statute.” Babbitt, 442

U.S. at 298; see, e.g., Veterans of Foreign Wars of U.S. v. Tex. Lottery Comm’n, 760 F.3d 427, 439

(5th Cir. 2014) (charitable organizations had standing to challenge statute prohibiting their use of

bingo proceeds for political advocacy as an unconstitutional burden on their political speech). 21

Analysis

Plaintiffs have established by a preponderance of the evidence that OCA, the League,

LUPE, MABA, LULAC, TARA, and AFT and their respective members (1) are prospectively

21
See also S. Christian Leadership Conf. v. Sup. Ct. of State of La., 252 F.3d 781, 788 (5th Cir. 2001) (concluding
that “at least some” of the plaintiffs—law students and faculty and community and student organizations—had
standing to challenge a Louisiana Supreme Court rule restricting representation by student-practitioners because the
operations of law-school clinics were “directly regulate[d]” and “[s]everal of the client organizations would be unable
to obtain representation by the clinics”).

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subject to the Canvassing Restriction and (2) have been injured by the Canvassing Restriction’s

chilling effect on their speech. 22

Plaintiffs have suffered an organizational injury to their speech

“Organizations, like individuals, enjoy rights to free speech, free exercise, and equal

protection of the laws.” Caractor v. City of New York Dep’t of Homeless Servs., No. 11 CIV. 2990

DLC, 2013 WL 2922436, at *3 (S.D.N.Y. June 14, 2013) (citing Grosjean v. Am. Press Co., 297

U.S. 233, 244 (1936)); Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365 (2010)

(“Government may not suppress political speech on the basis of the speaker’s corporate identity”).

Like individuals, an organization does not need to affirmatively violate a law to have

standing to challenge it. See 303 Creative LLC v. Elenis, 600 U.S. 570, 579–82 (2023) (considering

company’s First Amendment pre-enforcement challenge). Instead, the plaintiff need only “aver[]

that it intend[s] to do so in the future.” Braidwood Mgmt., Inc. v. Equal Emp. Opportunity Comm’n,

70 F.4th 914, 927 n.23 (5th Cir. 2023).

The Fifth Circuit has “repeatedly held, in the pre-enforcement context, that ‘[c]hilling a

plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.’”

Speech First, Inc. v. Fenves, 979 F.3d 319, 330–31 (2020), as revised (Oct. 30, 2020) (quoting

Houston Chronicle v. City of League City, 488 F.3d 613, 618 (5th Cir. 2007)). To satisfy standing

requirements, this type of self-censorship must arise from a fear of prosecution that is not

“imaginary or wholly speculative.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

302 (1979). A fear of prosecution is “imaginary or wholly speculative” where plaintiffs “do not

22
When multiple plaintiffs seek the same injunctive relief, only one needs to establish standing. Rumsfeld v. Forum
for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Here, the Court must identify at least one
organization in each Plaintiff group with standing to seek injunctive against the local DAs in their respective
jurisdictions.

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claim that they have ever been threatened with prosecution, that a prosecution is likely, or even

that a prosecution is remotely possible.’” Id. (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).

The Fifth Circuit recently clarified in Fenves that, “when dealing with pre-enforcement

challenges to recently enacted (or, at least, non-moribund) statutes that facially restrict expressive

activity by the class to which the plaintiff belongs, courts will assume a credible threat of

prosecution in the absence of compelling contrary evidence.” Fenves, 979 F.3d at 335 (emphasis

added) (quoting N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996)).

To establish a credible fear of enforcement, then, a plaintiff may, but need not, rely on a

history of past enforcement of similar policies or direct threats to enforce the challenged policies:

“Past enforcement of speech-related policies can assure standing,” but “a lack of past enforcement

does not alone doom a claim of standing.” Fenves, 979 F.3d at 336 (citing Ctr. for Individual

Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006). Rather, a plaintiff may also establish

a substantial threat of enforcement simply by showing that she is “either presently or prospectively

subject to the regulations, proscriptions, or compulsions [being challenged].” Id. at 335 (citing

Laird v. Tatum, 408 U.S. 1, 11 (1972)).

A plaintiff whose speech is subject to the challenged restriction can establish standing even

when the defendant disavows any intention to enforce the policy. Id. at 337. As the Fifth Circuit

put it:

[I]f there is no history of inappropriate or unconstitutional past

enforcement, and no intention to pursue discipline [up to and
including criminal referral] under these policies for speech that is
protected by the First Amendment, then why maintain the policies
at all? At least, why maintain the plethora of potential sanctions?

Id. “Where the policy remains non-moribund, the claim is that the policy causes self-censorship

among those who are subject to it, and the [plaintiffs’] speech is arguably regulated by the policy,

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there is standing.” Id. at 336–37 (citing Speech First, Inc. v. Schlissel, 939 F.3d 756, 767–70 (6th

Cir. 2019) (fact that “there is no evidence in the record” of past enforcement “misses the point”)).

In the pre-enforcement context, “the threat is latent in the existence of the statute.” Id. at 336. If a

plaintiff “plainly belong[s] to a class arguably facially restricted by the [law],” that is enough to

establish “a threat of enforcement.” Id.; see also Babbitt, 442 U.S. at 302 (recognizing union’s

standing to assert pre-enforcement because the union was “not without some reason in fearing

prosecution,” since the criminal penalty provision applied to the union’s speech, and “the State

ha[d] not disavowed any intention of invoking the criminal penalty provision against unions”).

The evidentiary burden for proving that a plaintiff is “prospectively” subject to the

challenged regulation is not demanding. Fenves, 979 F.3d at 335; Laird, 408 U.S. at 11. A plaintiff

need not show that it has engaged in arguably proscribed conduct in the past to demonstrate an

intent to engage in such conduct in the future. See 303 Creative LLC v. Elenis, 600 U.S. 570, 579–

82 (2023) (considering company’s First Amendment pre-enforcement challenge to an anti-

discrimination statute by a graphic designer who had never created a wedding website but

“worrie[d] that, if she enter[ed] the wedding website business, the State [of Colorado would] force

her to express messages inconsistent with her belief[s]”).

Plaintiffs are prospectively subject to the Canvassing Restriction.

All of the organizations:

(a) have supported ballot measures and/or candidates in the past and intend
to do so in the future; 23

23
See Tr. at 1711:8–19, 1712:17–1713:11; 1726:8–14 (OCA has advocated for certain ballot measures); Tr. at Tr. at
1600:17–19 (LWV has supported ballot measures, including a school bond in Austin); Tr. at 89:2–18 (LUPE has
supported ballot measures, including a drainage bond, the creation of a health care district in Hidalgo County,
increased broadband access in South Texas); Tr. at 2542:6–8 (MABA routinely encourages support for candidates and
ballot measures by tabling at local events, such as candidate forums); Tr. at 1632:25–1633:9 (LULAC does not endorse
particular candidates but has taken positions on issues such as school and municipal bond measures, state constitutional
amendments, and ballot propositions affecting taxes and public education); Tr. at 1764:3–10 (TARA has advocated
for and against ballot measures, engaged in issue advocacy, and endorsed local and state candidates based on their

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(b) have advocated for their positions through in-person voter engagement
efforts, such as neighborhood block-walking, tabling in public places,
and hosting candidate forums, town hall meetings, and other events at
their offices and in members’ homes; 24

(c) reasonably expect mail-in ballots to be present during such interactions

with voters, who often take out their ballots at election events or in
conversations with door-to-door canvassers because they have
questions about the ballot or needed voting assistance; 25 and

(d) maintain staff and/or volunteers who receive some “compensation or

other benefit” in exchange for their in-person canvassing efforts. 26

Each Plaintiff has thus established an intention, as an organization, to engage in speech

arguably proscribed by the Canvassing Restriction. See 303 Creative, 600 U.S. at 579–82; Susan

B. Anthony List, 573 U.S. at 159. Moreover, all the organizations and their members have self-

positions on issues relevant to TARA); Tr. at 929:6–930:5 (AFT engaged in block-walking to advocate for candidates
and issues supported by the organization);
24
See Tr. at 1694:21–1696:8, 1699:24–1702:2, 1706:12–1707:3 (OCA hosted election events attended by hundreds
of people, including in-person candidate forums and meet-and-greets, and conducts block-walking and exit-polling,
and encountered voters who requested assistance with their mail ballots); Tr. at 1595:3–15, 1596:3–12, 1607:7–14
(LWV hosts in-person events attended by hundreds of people in part because members like to hear about ballot
measures and discuss them with other members of the community and ask candidates questions about their positions);
Tr. at 71:1–72:15, 75:11–75:17, 90:4–24, 119:20–120:18 (LUPE members brought mail ballots to LUPE offices and
meetings and took them out during interactions with door-to-door canvassers and asked for voting assistance); Tr. at
(MABA tables at local events, including candidate forums); Tr. at 1654:2–1657:19 (LULAC members provided voter
assistance during their GOTV efforts with senior citizens); Tr. at 1762:20–1763:4 (TARA hosts monthly chapter
meetings, rallies, and community events across Texas); Tr. at 929:6–930:5 (AFT engaged in block-walking to
advocate for candidates and issues supported by the organization).
See id; see also Tr. at 925:9–12, 926:17–928:1 (AFT members have had voters take out their mail-in ballots while
25

engaging in block-walking and door-to-door canvassing and AFT members themselves have filled out their mail
ballots together during chapter meetings).
26
See Tr. at 1717:24–1718:5, 1714:13–22, 1716:14–22, 1694:11–20 (OCA routinely offers volunteers benefits that
could be considered compensation—meals, beverages, snacks, academic credit, shirts, and other nominal gifts—and
pays independent contractors for literature-drop canvassing); Tr. at 1597:11–13, 1598:23–1599:1, 1601:2–8, 1601:12–
1602:1 (LWV provides volunteers who staff in-person events with benefits such as food and letters of
recommendation); Tr. at 75:11–17 (LUPE relies primarily on paid staff members and temporary paid canvassers); Tr.
at 2542:17–20, 2544:14–16 (MABA volunteers are concerned that accepting gas cards, meals, swag, or a bottle of
water will expose them to criminal liability); Tr. at 1654:2–1657:19 (LULAC volunteers receive modest compensation
in the form of raffle tickets, food, and gasoline money); Tr. at 1763:16–18 (TARA relies primarily on its one paid
field organizer, Judy Bryant); Tr. at 929:6–930:5 (AFT block-walkers include paid staff and volunteers who receive
gas cards, food, “swag,” and raffle tickets for their efforts).

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censored speech that is “arguably regulated by” the Canvassing Restrictions. 27 Plaintiffs have also

experienced a chilling effect on their associational rights, including their ability to recruit new

members and volunteers and to assist voters during in-person events. 28

Plaintiffs’ Organizational Injuries are Traceable to Defendants.

The injury to Plaintiffs’ and their members’ free speech rights are fairly traceable to the

State Defendants and County DAs, based on their authority to enforce the Canvassing Restriction

under Texas law and willingness to do so.

Because the Canvassing Restriction “facially restrict[s]” Plaintiffs’ expressive activity the

Court must “assume a credible threat of prosecution in the absence of compelling contrary

evidence.” Fenves, 979 F.3d at 335 (emphasis added). The threat here is traceable to State

Defendants and the County DAs, who, under the circumstances described in the Election Code,

27
See Tr. at 1718:20–24, 1720:1–15, 1722:3–16, 1722:17–1723:5 (OCA no longer hosts in-person candidate forums
and have stopped offering voter assistance); Tr. at 1599:17–21, 1620:7–1621:1 (LWV does not track whether voters
bring ballots to their events but prospective voters are likely to have their ballots with them during candidate forums,
which are typically held during the voting period); Tr. at 91:18–92:24, 3674:22–3675:11, 3684:13–3685:11, 3685:5–
11 (LUPE has trained its canvassers to cease ballot issue advocacy to voters when a mail ballot is or might be present);
Tr. at 2543:16–23 (MABA members are no longer willing to provide voter assistance); Tr. at 1654:2–1657:19
(LULAC had several counsels terminate their GOTV efforts with senior citizens because they were afraid of being
asked for assistance); Tr. at 1765:19–1766:23 (TARA’s only paid field organizer, is no longer willing to “accept or
set up any tabling invitations or events” once “mail ballots go out” because she does not want to take the chance of a
person “having a mail ballot” when she advocates on behalf of TARA); Tr. at 925:9–12, 926:17–19, 928:2–9, 930:11–
21 (AFT has shifted its focus from in-person voter engagement to communicating with voters by text message, email,
and phone, and must now warn its remaining block-walkers and temporary paid organizers to limit their interactions
with voters so as to not risk criminal penalties).
28
See Tr. at 1717:5–13, 1721:2–4, 1718:20–24, 1719:3–8, 1720:1–15 (OCA’s attendance at virtual events has been
“abysmal” and S.B. 1 has “decimated” its ability to provide voter assistance at events); Tr. at 1620:7–1621:1 (LWV
“would turn away members with their mail-in ballots from candidate forums”); Tr. at 2543:14–2544:23 (MABA has
had difficulty recruiting members to table events in support of candidates because of SB1 and because members fear
that they might inadvertently commit a crime); Tr. at 1655:10–18 (LULAC volunteers “scaled . . . down” their GOTV
efforts and decided not to conduct voter outreach with seniors, many of whom require voting assistance, for “fear that
they could be subject to prosecution if they help seniors vote by mail”); Tr. at 1766:15–23 (TARA’s mission has been
severely impacted by the restrictions during the early voting period because voter engagement and advocacy efforts
are most critical in the weeks leading up to an election); Tr. at 934:7–21 (AFT’s members are less willing to volunteer
with the organization because they are uncertain about how to comply with the law).

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are vested with the authority to enforce the Canvassing Restrictions in the various jurisdictions in

which Plaintiffs’ free speech rights have been injured. 29

That mere possibility that a defendant might exercise his discretion to decline to enforce a

challenged law does not change the analysis: discretion does not obviate authority or defeat

traceability. See, e.g., 303 Creative, 600 U.S. at 581 (“[S]tate officials . . . may bring actions to

enforce the law. . . The Colorado Commission on Civil Rights can issue cease-and-desist orders

and require violators to take various other “affirmative action[s].”). 30 After all, it is the credible

threat of enforcement that has harmed Plaintiffs and their members. See Longoria v. Paxton, No.

SA:21-CV-1223-XR, 2022 WL 447573, at *17 (W.D. Tex. Feb. 11, 2022), vacated and remanded

on other grounds, No. 22-50110, 2022 WL 2208519 (5th Cir. June 21, 2022) (“To be clear, the

irreparable harm alleged in this case is not actual enforcement of the anti-solicitation provision;

the harm is the chilling effect on Plaintiffs’ speech that arises from the credible threat of

enforcement.” (emphasis in original)).

The injuries to Plaintiffs’ First Amendment rights are traceable to the County DAs, who

have “the specific duty” to prosecute election law violations. In Texas, County DAs are tasked

with enforcing the State’s criminal laws and represent the State of Texas in all criminal cases in

29
All Plaintiffs operate within the State of Texas and thus are subject to enforcement by the Secretary and the AG.
Among the OCA Plaintiffs, who have also sued the Travis County DA, see ECF No. 200, the League operates in Travis
County, see Tr. at 1586:12–13 (LWV). Among the LULAC Plaintiffs, who have also sued the County DAs of Travis,
Dallas, and Hidalgo Counties, see ECF No. 207, LULAC, TARA, and AFT operate across Texas, including through
local chapters in Dallas County. See Tr. at 1634:6–20 (LULAC); Tr. at 1765:24–1766:5 (TARA); Tr. at 923:18–25
(AFT has 66,000 members across Texas). Among the LUPE Plaintiffs, who have also sued the DAs of Travis County,
Dallas County and the 34th Judicial District (including Hidalgo County), see ECF No. 208, LUPE serves voters in
Hidalgo County, Tr. at 58:13–16, and MABA has chapters throughout the state of Texas, Tr. at 2533:21–23.
30
In 303 Creative, the Supreme Court held that the plaintiff had established a credible threat of enforcement based on
“Colorado’s” history of enforcement “against nearly identical conduct” and the fact that “Colorado” declined to
disavow future enforcement proceedings. In attributing this conduct to “Colorado,” the Court did not distinguish
between the roles that the two key defendants—the Colorado Civil Rights Commission and the Colorado Attorney
General—played in the previous enforcement proceedings. See 600 U.S. at 581–82 (citing a past enforcement under
the same accommodation law that made its way to the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm’n, 584 U.S. 617 (2018)).

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their district, unless conflicts arise. Tex. Const. art. 5, § 21; TEX. CODE CRIM. P. ART. 2.01; see

TEX. GOV’T CODE § 43.180(b). “For this reason, courts have long recognized that prosecutors are

‘natural targets for § 1983 injunctive suits since they are the state officers who are threatening to

enforce and who are enforcing the law.’” McCraw, 90 F.4th at 785 (quoting Sup. Ct. of Va. v.

Consumers Union of U.S., Inc., 446 U.S. 719, 736 (1980)).

By virtue of their positions, DAs are charged with investigating and prosecuting violations

of the Election Code, including the Canvassing Restriction. Stephens, 663 S.W.3d at 52; see also

TEC § 273.001 (granting county and district attorney’s authority to investigate election crimes).

Indeed, all prosecutions under the Election Code require the consent or authorization of the

applicable DA. See Stephens, 663 S.W.3d at 52 (concluding that the AG “can prosecute [crimes

under the Election Code] with the permission of the local prosecutor but cannot initiate prosecution

unilaterally.”). All the County DAs acknowledge that they are responsible for enforcing the

Canvassing Provision. 31

None of the County DAs have disavowed enforcement of the Canvassing Restriction.

Indeed, the County DAs may not disavow such enforcement under Texas law. See TEX. LOC.

GOV’T CODE § 87.011(3)(B) (prohibiting district attorneys from adopting an enforcement policy

of refusing to prosecute a type or class of criminal offense); see also KVUE, Inc. v. Moore, 709 F.

2d 922, 930 (5th Cir. 1983) (holding that plaintiffs had standing to pursue a pre-enforcement

challenge in part because “the state has not disavowed enforcement”), aff’d sub nom. Texas v.

KVUE-TV, Inc., 465 U.S. 1092 (1984).

31
See ECF No. 753-6 (Travis County) ¶ 2; ECF No. 753-7 (Dallas County) ¶ 2; ECF No. 753-13 (Hidalgo County) ¶
2; ECF No. 753-8 (El Paso County) ¶ 2.

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Plaintiffs’ injuries are traceable to the AG, who, even after Stephens, retains “broad

investigatory powers” under the Election Code, State’s Br. at 49, LUPE v. Scott, No. 22-50775

(5th Cir. Dec. 9, 2022), ECF No. 62, and may “direct the county or district attorney . . . to conduct

or assist the attorney general in conducting the investigation.” See TEC § 273.002(1) (emphasis

added); see also id. § 273.001 (district attorneys must investigate alleged violations referred to

them). On top of this investigative power, “the Attorney General can prosecute with the permission

of [a] local prosecutor,” Stephens, 663 S.W.3d at 55, and no County DA has disavowed a

willingness to let the AG pursue cases within their counties.

Plaintiffs’ injuries are also traceable to the Secretary. The Secretary must review

complaints about potential violations of elections laws and, upon finding probable cause to believe

that a crime occurred, refer the case to (and provide all relevant documents) to the AG. TEC §

31.006; see also TEC § 276.019 (“A public official or election official may not create, alter, modify,

waive, or suspend any election standard, practice, or procedure mandated by law or rule in a

manner not expressly authorized by this code.”). Because this duty is mandatory under the Election

Code, absent injunctive relief against the Secretary, she will be forced to refer potential violations

of the Canvassing Restriction to the AG—even if the AG has himself been enjoined from enforcing

TEC § 276.015. The threat of a such a referral to the AG could still chill Plaintiffs’ speech by

inviting the AG to embark on an arbitrary and discriminatory fishing expedition.

Plaintiffs’ Organizational Injuries are Redressable by Defendants.

Finally, the Court finds that Plaintiffs’ injuries are “likely to be redressed by a favorable

judicial decision.” Spokeo, Inc., 578 U.S. at 338. An order declaring the Canvassing Restriction

unlawful and enjoining its enforcement would remove the chill that the provision presently

imposes on Plaintiffs and their members. See Ctr. for Individual Freedom v. Carmouche, 449 F.3d

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655, 661 (5th Cir. 2006) (finding “redressability prong[] of the standing inquiry . . . easily satisfied”

where “[p]otential enforcement of the statute caused the [plaintiff’s] self-censorship, and the injury

could be redressed by enjoining enforcement of the [statute]”); Nat’l Press Photographs Ass’n v.

McCraw, 504 F. Supp. 3d 568, 582 (W.D. Tex. 2020), aff’d 90 F.4th 770 (5th Cir. 2024) (similar).

In short, Plaintiffs’ position with respect to Section 7.04’s Canvassing Restriction is

“sufficiently adverse” to the State Defendants and the County DAs to present a case or controversy

within this Court’s jurisdiction. Babbitt, 442 U.S. at 302. 32

Satisfied of its jurisdiction, the Court turns to the merits of Plaintiffs’ constitutional

challenges to the Canvassing Restriction.

PLAINTIFFS’ CONSTITUTIONAL CHALLENGES

Plaintiffs challenge the Canvassing Restriction as applied to their in-person advocacy with

voters in the presence of a mail ballot in multiple contexts, including interactions in which voters

have asked Plaintiffs’ staff members and volunteers questions involving their mail ballots or for

32
Many, if not all, of the Plaintiffs, would also have associational standing as membership organizations with members
in Texas who receive compensation or other benefits in connection with their in-person canvassing activities. Cf.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 201 (2023) (where “an
organization has identified members and represents them in good faith, our cases do not require further scrutiny into
how the organization operates”).

Plaintiffs’ individual members would independently meet the Article III standing requirements because they have
engaged in self-censorship of speech that is arguably regulated by the Canvassing Restriction. See, e.g., Tr. at 1765:19–
1766:23 (TARA’s only paid field organizer, Judy Bryant, is no longer willing to “accept or set up any tabling
invitations or events” once “mail ballots go out” because she does not want to take the chance of a person “having a
mail ballot” when she advocates on behalf of TARA).

Their First Amendment injuries are traceable to the State Defendants and the County DAs, based on their power to
enforce the Canvassing Restriction under Texas law. Moreover, the free speech interests that Plaintiffs seek to protect
are germane to their respective organizational missions. See, e.g., Tr. at 1762:8–19, 1764:3–10, (TARA educates and
mobilizes its members and volunteers to advance the interests of seniors citizens in Texas by engaging with voters in
person about local and state candidates and ballot measures that would advance TARA’s mission). Because Plaintiffs
seek prospective and injunctive relief, rather than individualized damages, the participation of their members is not
required. See Consumer Data Indus. Ass’n, 2023 WL 4744918, at *4 n.7.

The Court need not examine Plaintiffs’ associational standing to challenge the Canvassing Restriction in any further
detail, however, considering the obvious organizational interests at stake.

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assistance completing them. The OCA Plaintiffs and LUPE Plaintiffs also assert facial challenges

to the Canvassing Restriction as overbroad and unconstitutionally vague. See ECF Nos. 200, 208.

“Confusion abounds over the scope of as-applied and other types of First Amendment

challenges that a plaintiff can pursue when challenging a statute,” Just. v. Hosemann, 771 F.3d

285, 292 (5th Cir. 2014), but the primary distinction “goes to the breadth of the remedy employed

by the Court, not what must be pleaded in a complaint.” Citizens United, 558 U.S. at 331.

“[T]he overbreadth doctrine enables litigants ‘to challenge a statute not because their own

rights of free expression are violated, but because of a judicial prediction or assumption that the

statute’s very existence may cause others not before the court to refrain from constitutionally

protected speech or expression.’” Hill v. Colorado, 530 U.S. 703, 731–32 (2000) (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); Sec’y of State of Md. v. Joseph H. Munson

Co., 467 U.S. 947, 958 (1984) (“Facial challenges to overly broad statutes are allowed not

primarily for the benefit of the litigant, but for the benefit of society[.]”).

In the First Amendment context, facial challenges require courts to evaluate whether “a

substantial number of [the law’s] applications are unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.” Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024)

(finding in the “singular” First Amendment context, “even a law with a plainly legitimate sweep

may be struck down in its entirety. But that is so only if the law’s unconstitutional applications

substantially outweigh its constitutional ones.”) (citation and internal quotations omitted).

“[E]ven if an enactment does not reach a substantial amount of constitutionally protected

conduct, it may be impermissibly vague because it fails to establish standards for the police and

public that are sufficient to guard against the arbitrary deprivation of liberty interests.” City of

Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)).

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As a practical matter, the Court will begin its analysis with Plaintiffs’ facial challenges

because, the “first step” in overbreadth and vagueness cases is to “construe the challenged statute.”

United States v. Williams, 553 U.S. 285, 293 (2008) (“[I]t is impossible to determine whether a

statute reaches too far without first knowing what the statute covers.”); Vill. of Hoffman Ests. v.

Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494 (1982) (“In a facial challenge to the overbreadth

and vagueness of a law, a court’s first task is to determine whether the enactment reaches a

substantial amount of constitutionally protected conduct.”).

The Canvassing Restriction is subject to strict scrutiny.

The threshold question is what level of scrutiny applies to the Canvassing Restriction. See

Turner Broad. System, Inc. v. FCC, 512 U.S. 622, 637 (1994). The Canvassing Restriction is

subject to strict scrutiny both because it is a content-based and because it burdens Plaintiffs’ core

political speech.

The First Amendment to the U.S. Constitution protects against laws “abridging the freedom

of speech.” Free speech is protected both “from abridgment by Congress” and “from impairment

by the States.” Gitlow v. New York, 268 U.S. 652, 666 (1925). Accordingly, under the First

Amendment, states have “no power to restrict expression because of its message, its ideas, its

subject matter, or its content.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (quoting

Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).

Content-based restrictions on speech “single[] out specific subject matter for differential

treatment.” City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (quoting

Reed, 576 U.S. at 169). They distinguish between “favored” and “disfavored speech.” Serv. Emps.

Int’l Union, Loc. 5 v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010). “[A] speech regulation

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targeted at specific subject matter is content based even if it does not discriminate among

viewpoints within that subject matter.” Reagan Nat’l Advert., 596 U.S. at 71 (citation omitted).

Courts apply “strict scrutiny” to content-based restrictions on speech and laws that burden

political expression. See Reed, 576 U.S. at 163–64 (content-based restrictions); Meyer v. Grant,

486 U.S. 414, 420 (1988) (political speech); Citizens United, 558 U.S. at 340 (same); Veterans of

Foreign Wars, 760 F.3d at 438–39 (same). Such laws are “presumptively unconstitutional and may

be justified only if the government proves that they are narrowly tailored to serve compelling state

interests.” Reed, 576 U.S. at 163.

Strict scrutiny is required because the First Amendment “‘has its fullest and most urgent

application’ to speech uttered during a campaign for political office.” Eu v. San Francisco Cnty.

Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S.

265, 272 (1971)). Efforts to encourage voters to support a candidate or ballot measure constitute

“the type of interactive communication concerning political change that is appropriately described

as ‘core political speech.’” Meyer, 486 U.S. at 421–22. That is because “‘[f]ree trade in ideas’

means free trade in the opportunity to persuade to action, not merely to describe facts.” NAACP v.

Button, 371 U.S. 415, 437 (1963) (quoting Thomas v. Collins, 323 U.S. 516, 537 (1945)). Thus,

facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant,

but for the benefit of society—to prevent the statute from chilling the First Amendment rights of

other parties not before the court. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947,

958 (1984).

The Canvassing Restriction is content based because it “single[s] out specific subject

matter”—speech intended to deliver votes for a specific candidate or measure—“for differential

treatment.” Reagan Nat’l Advert., 596 U.S. at 69 (quoting Reed, 576 U.S. at 169). No other

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category of speech is targeted for similar disfavored treatment. City of Houston, 595 F.3d at 596

(holding that content-based regulations are those that distinguish between “favored” and

“disfavored speech”). It does not matter that the Canvassing Restriction does not target speech in

support of specific candidates or measures—a regulation is content-based “even if it does not

discriminate among viewpoints within that subject matter.” Reagan Nat’l Advert., 596 U.S. at 71.

Plaintiffs’ in-person voter engagement activities constitute “the type of interactive

communication concerning political change that is appropriately described as ‘core political

speech.’” Meyer, 486 U.S. at 421–22; see also NAACP v. Button, 371 U.S. 415, 437 (1963) (“‘Free

trade in ideas’ means free trade in the opportunity to persuade to action” (quoting Thomas v.

Collins, 323 U.S. 516, 537 (1945))). Urging voters to support particular measures or candidates

during in-person interactions—the category of speech targeted by the Canvassing Restriction—is

fundamentally expressive, and an individual or organization that conducts such activities engages

in core political speech.

The State Defendants incorrectly assert that Anderson/Burdick governs the level of scrutiny

applicable to Plaintiffs’ challenge to the Canvassing Restriction, based on a misreading of the Fifth

Circuit’s decision in Voting for America Inc. v. Steen, 732 F.3d 382, 385 (5th Cir. 2013).

Steen involved a challenge to Texas regulations governing the appointment of volunteer

deputy registrars (“VDRs”), who are trained and empowered under Texas law to collect and deliver

completed voter registration applications. Id. Specifically, the regulations provided that VDRs

must be Texas residents and that they could register voters only for counties in which the VDRs

had been appointed. Id. at 389. Reversing the district court’s preliminary injunction, the Fifth

Circuit acknowledged that VDRs often engage in core political speech by “soliciting, urging and

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persuading the citizen to vote,” id. at 390, but concluded that the VDR provisions did not impose

any burden on such speech:

The Non–Resident and County provisions do not in any way restrict or

regulate who can advocate pro-voter-registration messages, the manner in
which they may do so, or any communicative conduct. They merely regulate
the receipt and delivery of completed voter-registration applications, two
non-expressive activities.

Id. at 391 (citations omitted). In other words, prohibiting out-of-state canvassers from registering

voters in Texas did not affect their ability to promote voter registration in Texas. Moreover, the

voter registration application itself did not represent the VDR’s speech, the majority reasoned, but

the voter’s speech. Id. at 390. Because the canvassers’ speech was “distinct from both the collection

and delivery of the forms and from the voters’ ‘speech’ in registering,” registration drives could

not be considered “expressive conduct” protected by the First Amendment. Id. at 391. Despite

finding it “indisputable” that requirements “burden[ed] no one’s core political speech,” the

majority addressed the alleged burden on the canvassers’ purportedly expressive conduct under

Anderson-Burdick for the sake of argument. See id. at 392–96 (concluding that any burden was

minimal and justified by Texas’s interest in preventing voter registration fraud).

Steen does not stand for the proposition that any election-related speech should be analyzed

under Anderson-Burdick. To the contrary, the Supreme Court has made clear that while Anderson-

Burdick applies to laws and regulations that “control the mechanics of the electoral process,” it

does not apply to “a regulation of pure speech,” even in the election context. McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 345 (1995).

Burdens on core political speech during elections, like all burdens on core political speech,

are subject to strict scrutiny. Id. at 347. 33 And with good reason: it would defy logic to subject a

33
See also Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 207 (1999) (Thomas, J., concurring) (“When a State’s
election law directly regulates core political speech, we have always subjected the challenged restriction to strict

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content-based restriction of core political speech to lesser scrutiny because it happens to regulate

speech during elections, when “the importance of First Amendment protections” is at its “zenith.”

Meyer, 486 U.S. at 425; see also McIntyre, 514 U.S. at 346–47 (noting political speech “occupies

the core of the protection afforded by the First Amendment” and that “[n]o form of speech is

entitled to greater constitutional protection”). Indeed, “it can hardly be doubted that the

constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the

conduct of campaigns for political office.” Serafine v. Branaman, 810 F.3d 354, 361 (5th Cir. 2016)

(holding that content-based restriction in election context was subject to “exacting scrutiny” (citing

McIntyre, 514 U.S. at 347)). 34

The State Defendants have not identified any election-related conduct purportedly

regulated by the Canvassing Restriction—let alone non-expressive conduct—suggesting that it is

directed toward the “mechanics of the electoral process” as opposed to “pure speech.” Indeed,

outside of voting assistance (which, as discussed herein, the State Defendants insist is still

permitted under the Canvassing Restriction), it is unclear to the Court how a canvasser could

scrutiny and required that the legislation be narrowly tailored to serve a compelling governmental interest.”); Mazo v.
N.J. Sec’y of State, 54 F.4th 124, 138, 142 (3d Cir. 2022), cert. denied sub nom. Mazo v. Way, 144 S. Ct. 76 (2023)
(concluding that Anderson-Burdick applies only to laws that “primarily regulate the mechanics of the electoral process,
as opposed to core political speech,” not to laws “that are primarily directed at regulating ‘pure speech’”) (quoting
McIntyre, 514 U.S. at 345); Lichtenstein v. Hargett, 83 F.4th 575, 593 (6th Cir. 2023) (explaining the Supreme Court
has “applied strict scrutiny—not Anderson-Burdick balancing—to many election laws” implicating core political
speech) (collecting cases); Fusaro v. Cogan, 930 F.3d 241, 258 (4th Cir. 2019) (observing the Supreme Court has
“distinguished between laws that . . . regulate ‘pure speech,’” and those subject to Anderson-Burdick); Campbell v.
Buckley, 203 F.3d 738, 745 (10th Cir. 2000) (recognizing “strict scrutiny,” rather than Anderson-Burdick, “is applied
where the government restricts the overall quantum of speech available to the election or voting process”); Cotham v.
Garza, 905 F. Supp. 389, 396 (S.D. Tex. 1995) (holding that provisions governing the mechanics of voting are subject
to Anderson-Burdick while a “content-based restriction on core political speech” is subject to strict scrutiny).
34
Although the Supreme Court at times has used the terms “strict” and “exacting” scrutiny interchangeably when
describing the relevant standard of review for content-based restrictions, more recent Supreme Court precedent has
clarified that both content-based regulations and laws that restrict political speech are subject to strict scrutiny. See,
e.g., City of Austin, 596 U.S. at 68–69 (content-based regulations warrant application of strict scrutiny); Reed, 576
U.S. at 164 (content-based regulations must satisfy strict scrutiny); Citizens United, 558 U.S. at 340 (laws burdening
political speech are subject to strict scrutiny); United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 812–13 (2000)
(subjecting content-based restriction to strict scrutiny).

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engage in an “in-person interaction” with a voter “intend[ing] to deliver votes for a specific

candidate or measure” without engaging in core political speech. 35

Any argument that the Canvassing Restriction regulates conduct—e.g., the payment of

“compensation or other benefit”—rather than speech is foreclosed by Citizens United, 558 U.S. at

351 (applying strict scrutiny to a ban on independent corporate expenditures for electioneering

communications); see also Buckley v. Valeo, 424 U.S. 1 (1976). “A restriction on the amount of

money a person or group can spend on political communication during a campaign necessarily

reduces the quantity of expression by restricting the number of issues discussed, the depth of their

exploration, and the size of the audience reached.” Buckley, 424 U.S. at 19. As the Supreme Court

has acknowledged, “all speakers, including individuals and the media, use money amassed from

the economic marketplace to fund their speech,” Citizens United, 558 U.S. at 351:

[V]irtually every means of communicating ideas in today’s mass society

requires the expenditure of money. The distribution of the humblest
handbill or leaflet entails printing, paper, and circulation costs. Speeches
and rallies generally necessitate hiring a hall and publicizing the event. The
electorate’s increasing dependence on television, radio, and other mass
media for news and information has made these expensive modes of
communication indispensable instruments of effective political speech.

Buckley, 424 U.S. at 19. “The First Amendment protects the resulting speech.” Citizens United,

558 U.S. at 351.

Strict scrutiny applies to the Canvassing Restriction.

35
The Canvassing Restriction does regulate voters’ conduct insofar as it prevents them from voting by mail in the
presence of a paid canvasser advocating for a particular candidate or ballot measure. Indeed, the LUPE Plaintiffs have
in fact challenged Section 7.04’s impact on voters as an unconstitutional burden on the right to vote in violation of the
First and Fourteenth Amendments and acknowledge that Anderson-Burdick applies to that claim. See ECF No. 208 ¶¶
219–29; see also ECF No. 854 § V. This order is limited to Plaintiffs’ free speech and overbreadth challenges to
Section 7.04 in their capacity as canvassers.

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The Canvassing Restriction is Facially Overbroad

The Legal Framework

A “law imposing criminal penalties on protected speech is a stark example of speech

suppression,” Ashcroft v. Free Speech Coal., 535 U.S. 564, 573 (2002), and the overbreadth

doctrine permits courts to invalidate laws with civil or criminal penalties that might chill or dampen

expressive activity of members of the public at large:

Many persons, rather than undertake the considerable burden (and

sometimes risk) of vindicating their rights through case-by-case litigation,
will choose simply to abstain from protected speech—harming not only
themselves but society as a whole, which is deprived of an uninhibited
marketplace of ideas. Overbreadth adjudication, by suspending all
enforcement of an overinclusive law, reduces these social costs caused by
the withholding of protected speech.

Virginia v. Hicks, 539 U.S. 113, 119 (2003) (citations omitted). Still, “invalidating a law that in

some of its applications is perfectly constitutional . . . has obvious harmful effects.” United States

v. Williams, 553 U.S. 285, 292 (2008).

To “strike[] a balance between competing social costs,” a court considering a First

Amendment overbreadth challenge should invalidate the statute only if a significant number of its

applications are unconstitutional, considering the statute’s intended scope. United States v. Stevens,

559 U.S. 460, 473 (2010).

The Scope of the Canvassing Restriction

The Court first “assess[es] the state law’s scope.” Moody, 144 S. Ct. at 2398. The

Canvassing Restriction imposes criminal liability on anyone who receives or offers “compensation

or other benefit” and engages in speech that is “intended to deliver votes for a specific candidate

or measure” in “the physical presence” of a mail ballot. TEC § 276.015.

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Neither the Secretary nor the OAG has provided any guidance on the meaning of the

Canvassing Restriction. Tr. at 1914:7–14, 1924:7–18, 1924:24–1925:3.

The Canvassing Restriction is not limited to instances of voter fraud or coercion.

Despite the text of the statute, Mr. Ingram testified that vote harvesting involves “physical

presence, intimidation, making sure that a voter marked one box one way,” Tr. at 1914:1–6, and

occurs when somebody puts pressure on a voter to vote a particular way on a particular race[.]”

Tr. at 4427:7–18. However, the Canvassing Restriction says nothing about “intimidation,” “making

sure the voter marked one box one way,” or putting “pressure on a voter.” See generally TEC §

276.015.

The Canvassing Restriction criminalizes compensation for interactions rather than the

actual delivery of votes and imposes liability based on the intent of the voter outreach activity—to

encourage a voter to support a particular candidate or ballot measure—rather than its actual effect

on a voter. Nothing in the text of the statute limits its application based on the voter’s perception

of the interaction.

The text of the Canvassing Restriction reaches activities in the presence of a mail ballot

regardless of the interaction’s ability to affect the voter. By its text, Section 7.04 does not even

permit an organizer to continue speaking in the presence of a mail ballot that the organizer learns

will never deliver a vote for her cause, simply because she entered the interaction with the intent

to garner electoral support. Section 7.04 is silent as to the canvasser’s knowledge about the voter’s

intent or ability to actually cast the ballot that happens to be present in favor of the canvasser’s

preferred candidate or measure. The ballot may have already been completed in favor of an

opposing candidate or measure. A voter in possession of a mail-in ballot may become ineligible to

vote by mail under Texas law due to changes in her travel plans (or some other change in

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circumstances) 36 and decide to surrender his mail ballot at a polling station and vote in person.

Likewise, the ballot materials might contain some damage or defect that would invalidate the

ballot. There is no chance that the canvasser’s compensated speech would, under those

circumstances, intimidate or pressure a voter during the voting process.

The text of the Canvassing Restriction reaches organizers who provide voter assistance at

a voter’s request. The State Defendants assert that such assistance falls outside the purview of

Section 7.04 because it is not “designed to deliver votes for or against a specific candidate or

measure.” ECF No. 862 ¶ 479 (citing TEC §276.05(e)); see also ECF No. 608 at 36.

But any efforts designed to increase turnout among voters who are already likely to vote

for the organization’s preferred candidate or measure are, arguably “designed to deliver votes for

the candidate or measure.” Thus, training canvassers on how to provide non-coercive voting

assistance to LEP and disabled voters upon request during candidate forums or block-walking

would be arguably “designed to deliver votes for a specific candidate or measure” if the

organization’s outreach efforts were directed toward like-minded voters.

The expansive reach of the term “interaction”—as opposed to “communication” or

“speech” or “advocacy”— compels the same conclusion because it very clearly encompasses both

core political speech and voting assistance. See Interaction, Merriam-Webster,

https://www.merriam-webster.com/dictionary/interaction (last visited Sept. 24, 2024) (defining

“interaction” means “mutual or reciprocal action or influence”). Nothing in the text of the

Canvassing Restrictions suggests that a voter who asks a canvasser for voting assistance while

36
Texas authorizes several categories of voters to vote by mail. These include voters who are 65 years of age or older,
disabled voters who cannot vote in person on Election Day “without the likelihood of needing personal assistance or
injuring [their] health,” voters absent from their home counties for the entire in-person voting period, and voters who
expect to give birth near Election Day. TEC §§ 82.001–004, .007–.008.

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discussing a ballot measure begins a new, distinct “interaction” that is no longer imbued with the

canvasser’s original intent.

Finally, the text of the Canvassing Restriction can be read to impose criminal liability on

the very voters it purports to protect. For example, a voter discussing his mail ballot with a like-

minded GOTV volunteer would arguably violate Section 7.04 by offering a glass of water as a

pick-me-up during a hot afternoon of door-knocking. See TEC § 276.015 (making it a crime to

offer a benefit for the canvasser’s “services”). 37 Likewise, a paid organizer could violate the statute

by using her own mail-in ballot as a visual aid during conversations with voters. Section 7.04

criminalizes both interactions, even though neither voter faces risk of coercion or intimidation

based on the “compensation” involved or the “presence” of a mail ballot.

The Canvassing Restriction is not limited to speech during active voting.

The State Defendants insist that the Canvassing Restriction is merely a restriction on the

timing of canvassers’ speech only “in situations where an individual is actively voting or is being

pressured to do so.” ECF No. 862 ¶ 1038; see also Tr. at 1915:12–16 (Mr. Ingram’s testimony that

illegal vote harvesting is limited to “whenever the voter and the harvester get together and they’re

reviewing the ballot together, and then they get down to that candidate, and the harvester makes

sure they check the right box[.]”).

Here, again, because nothing in the text of the Canvassing Restriction even limits its

application to interactions involving live ballots, it appears to apply to interactions in the presence

of mail ballots that will never actually be cast.

37
This application of the Canvassing Restriction is not purely hypothetical. At trial, Grace Chimene, testifying on
behalf of the League, was especially worried that League volunteer activities’ during door-to-door canvassing could
expose voters to criminal liability: “It’s not just my concern for the league members, but it’s also a concern if just a
voter that were helping provides compensation, or the place that they live provides compensation of some type that
they may be committing a crime.” Tr. at 1592:1–5; cf. Tr. at 1904 (Keith Ingram’s testimony that a voter would violate
Section 6.06’s bar on compensated assistance by offering a volunteer $20 to help them vote).

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Even with respect to live ballots, the State Defendants’ position is unsupported by the text

of the provision, which applies to interactions that occur “in the presence of the ballot or during

the voting process.” TEC § 276.015(e)(2) (emphasis added). Nothing in S.B. 1 or the Election

Code defines what it means for an individual to be in the “physical presence” of a ballot. Tr. at

1914:18–20. According to the State Defendants, “‘physical presence’ does not simply mean in the

same house or within a particular distance, it means a vote harvester going through the ballot with

the voter and ensuring the voter chooses the harvester’s candidate.” ECF No. 862 ¶ 479. To have

any meaning at all, however, “in the physical presence of a ballot” must extend beyond the voting

process itself. Cf. Nielsen v. Preap, 586 U.S. 392 (2019) (explaining that, under the interpretative

canon against surplusage, “every word and every provision is to be given effect [and n]one should

needlessly be given an interpretation that causes it to duplicate another provision or to have no

consequence.” (quotation marks and citation omitted)). As discussed below in connection with

Plaintiffs’ vagueness claims, however, it is anyone’s guess how far the Canvassing Restriction

reaches beyond ballots that are being actively voted.

Having construed the Canvassing Provision, the next step is to “decide which of the [law’s]

applications violate the First Amendment, and to measure them against the rest.” Moody, 144 S.

Ct. at 2398.

The Canvassing Restriction is unconstitutional in a large number of applications

Because the Canvassing Restriction is subject to strict scrutiny, the State Defendants must

“prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that

interest.” Veterans of Foreign Wars, 760 F.3d at 438 (quoting Citizens United, 558 U.S. at 340).

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Legal Standard

A law is “narrowly tailored” if it (1) actually advances the state’s interest, (2) does not

sweep too broadly, (3) does not leave significant influences bearing on the interest unregulated

(i.e., is not underinclusive), and (4) could be replaced by no other regulation that could advance

the interest as well with less infringement of speech (is the least-restrictive alternative). Id. at 427.

Speech restrictions cannot “sweep too broadly” if they are to be considered “narrowly

tailored.” Id. at 440 (quoting Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir. 2005)

(en banc)). The Government must identify an “actual problem” in need of solving, United States

v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000), and demonstrate that restricting free speech

is necessary to the solution, see R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992). In other words,

“if a less restrictive alternative would serve the Government’s purpose, the legislature must use

that alternative.” Playboy, 529 U.S. at 813; see also Serv. Emps. Int’l Union, 595 F.3d at 603–04

(holding that Houston’s broad restriction on the timing of parades was not narrowly tailored

because the city could have advanced its interests with less restrictive alternatives); see generally

Citizens United, 558 U.S. at 340.

In addition to overbreadth, evidence of underinclusivity can defeat a statute subject to strict

scrutiny. See Reed, 576 U.S. at 172 (“[A] ‘law cannot be regarded as protecting an interest of the

highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable

damage to that supposedly vital interest unprohibited[.]’”) (quoting Republican Party of Minn. v.

White, 536 U.S. 765, 780 (2002)).

Analysis

The State Defendants insist that Section 7.04 of S.B. 1 “was enacted to prevent paid

partisans from haranguing Texas citizens while they fill out their mail ballots.” ECF No. 862 ¶

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1023. “It applies,” they argue, “only to individuals who are paid to press individuals to fill out their

ballots—in the canvasser’s presence—in particular ways. It does not apply to canvassing beyond

that narrow situation.” ECF No. 862 ¶ 1023 (citations omitted).

To the contrary, the Canvassing Restriction is unconstitutional precisely because, by its

plain text, it reaches beyond that narrow situation to protected speech in a substantial number of

its applications. Moreover, it is unclear to the Court that County DAs would even be able to adopt

such a limiting construction without violating TEX. LOCAL GOV’T CODE § 813(B), which prohibits

DAs from adopting any policy that “prohibits or materially limits the enforcement of any criminal

offense.”

The State Defendants’ proposed limiting constructions are unsupported by the text and, in

any event, would not satisfy strict scrutiny because the Canvassing Restriction, besides being

overbroad, (1) does not actually advance the state’s interest, (2) is underinclusive, and (3) could

be replaced with a less restrictive alternative. See Veterans of Foreign Wars, 760 F.3d at 438.

The Canvassing Restriction does not advance any state interests.

To be clear, Plaintiffs do not suggest that the First Amendment confers upon canvassers an

unfettered right to “harangue” a voter as she is casting a mail ballot—with or without the

canvasser’s assistance. States, to be sure, have an “important state interest” in “[e]nsuring that

every vote is cast freely,” Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2341 (2021).

Indeed, Plaintiffs acknowledge that the Election Code already imposes criminal penalties

against “effort[s] to influence the independent exercise of the vote of another in the presence of

the ballot or during the voting process,” TEC § 276.013, or voting (or attempting to vote) a ballot

belonging to another person, or attempting to mark another person’s ballot without their consent

or specific direction, TEC § 64.012. Similarly, it is already a crime for a voting assistor to

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“suggest[] by word, sign, or gesture how the voter should vote” while providing such assistance

or “prepare[] the voter’s ballot in a way other than the way the voter directs or without direction

from the voter.” TEC § 64.036.

The fact that these preexisting provisions target the very conduct purportedly regulated by

the Canvassing Restriction indicate that the law is not “necessary” to serve the government’s

interests. R.A.V., 505 U.S. at 395; see also, e.g., Veterans of Foreign Wars, 760 F.3d at 441 (holding

that a statute’s provision was not narrowly tailored because the purported interest it served was

already met by a different provision).

The State Defendants dismiss concerns expressed by voters and election officials alike as

“farfetched” and “fanciful hypotheticals.” ECF No. 862 ¶¶ 1018, 1022. But, for their part, the State

Defendants have not offered even hypothetical scenarios in which the Canvassing Restriction

would serve the government’s interest in ways that are not already accomplished by other criminal

provisions of the Election Code, let alone identified an “actual problem” in need of solving. United

Playboy Ent. Grp., Inc., 529 U.S. at 813. The State Defendants failed to offer any evidence that

voters have been confused or improperly influenced by “compensated” canvassers for community-

based organizations who advocated in the presence of mail-in ballots. Nor is there any evidence

that the preexisting limitations on mail-in ballot assistance were insufficient to identify and

prosecute the few alleged instances of misconduct in Texas.

The Canvassing Restriction is not narrowly tailored to any compelling interest.

Even if the Canvassing Restriction served Texas’s interest in preventing its citizens from

being “harangued” while they fill out their mail ballots, ECF No. 862 ¶ 1023, it is not narrowly

tailored to that purpose because, as discussed, nothing in the text of the Canvassing Restriction

limits its application to “haranguing” speech or even speech that occurs during the voting process.

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See Am. Booksellers, 484 U.S. at 397 (“[T]he statute must be readily susceptible to the limitation;

we will not rewrite a state law to conform it to constitutional requirements.” (quotation omitted)).

The Canvassing Restriction “sweep[s] too broadly.” Veterans of Foreign Wars, 760 F.3d at

440. It is clear that Section 7.04 “could be replaced by . . . [an]other regulation that could advance

the interest . . . with less infringement of speech,” id.

If the legislature sought to prohibit canvassers from “haranguing” voters as they filled out

their ballots, it could have said so. Instead, Section 7.04’s broad terms extend its application to any

“in-person interaction,” from conversations at the voter’s front door to conversations at the post

office, sweeping in vast swaths of protected First Amendment activity. Rather than prohibiting

protected expression—“intended[ed] to deliver votes for a specific candidate or measure”—the

legislature could have crafted language specifically targeting speech that is “intended to defraud,

confuse, unduly influence or deceive.” Likewise, rather than restricting speech whenever a ballot

is merely “present,” the restriction at issue easily could have been limited to instances when a voter

is actively completing their ballot.

Not only would a less restrictive provision serve the Government’s purported interest, but

it would also serve the Government’s interests better than the Canvassing Restriction. Instead of

targeting interactions with voters, the legislature could have discouraged “vote harvesting” activity

by criminalizing compensation based on a canvasser’s actual delivery of votes. See 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484, 512 (1996) (“[T]he First Amendment directs that government

may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot

be treated as simply another means that the government may use to achieve its ends.”). Indeed,

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before S.B. 1, TEC § 86.105 prohibited “performance-based compensation” for voting assistance

based on the number of voters assisted or a quota of voters to be assisted. See JEX 1 at 54–55. 38

Comparisons to Texas’s electioneering regulations are inapposite.

The State Defendants insist that the protection afforded by the Canvassing Restriction is

“precisely what Texas gives in-person voters by requiring campaigners and partisans to remain

100 feet away from in-person polling places.” ECF No. 862 ¶ 1024; TEC §§ 61.003, 85.036. The

analogy to in-person voting is inapt, for a number of reasons.

To begin, such electioneering laws apply only in specific locations—within 100 feet of

polling places—and thus implicate the Supreme Court’s “‘forum based’ approach for assessing

restrictions that the government seeks to place on the use of its property.” Minn. Voters All. v.

Mansky, 585 U.S. 1, 11 (2018) (quoting Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S.

672, 678 (1992)) (“A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on

Election Day, government-controlled property set aside for the sole purpose of voting. The space

is a special enclave, subject to greater restriction.” (quotations omitted)).

That approach is impossible here, because there are no restrictions on where in the state a

mail-ballot may be present or voted—including in traditional public forums, where content-based

restrictions remain subject to strict scrutiny. Id. The Canvassing Restriction, then, according to the

State Defendants, effectively converts the entirety of Texas into a polling place where

conversations about candidates can create criminal liability. Under the State Defendants’ theory,

in weeks before an election, public parks and streets will vacillate from moment to moment

between being traditional public forums and non-public forums designated for voting depending

on whether a voter happens to be carrying or a casting a mail ballot on the premises. This position

38
Section 6.06 of S.B. 1 amended TEC § 86.105 to prohibit all compensation for voting assistance.

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fails as a matter of law and common sense. 39 Cf. Burson v. Freeman, 504 U.S. 191, 207–08 (1992)

(upholding campaign-free zone outside the polls based on “common sense” that a was “necessary”

to secure the advantages of the secret ballot and protect the right to vote).

The Canvassing Restriction itself implicitly acknowledges the difference in circumstances

by requiring an “in-person interaction” between the canvasser and a voter in the context of mail

ballots, while the electioneering provision prohibits individuals from “posting, us[ing], or

distribut[ing] political signs or literature” or “loiter[ing]” within 100 feet of the door to a building

in which a polling place is located. TEC § 61.003.

Because of the flexibility that voting by mail provides, mail voters who encounter

unwelcome canvassing activities can simply put their ballots away and vote some other time. In-

person voters, in contrast, do not have free rein to decide where to vote or the authority to control

who else shows up at the polling place. In-person voters are essentially captives to the

circumstances of their polling locations from the moment they get in line until they receive their

“I voted” sticker.

Accordingly, the State of Texas has exercised its authority to restrict certain conduct in and

around polling places that are simply inapplicable to the mail-in voting process. For example, in

addition to electioneering restrictions, Texas law prohibits a person from using a wireless

communication device within 100 feet of a voting station. TEC § 61.014(a). But the absentee

analog—prohibiting a person from using such a device “in the presence of a mail-in ballot”—

would be impractical. It would bar a voter from filling out his mail-in ballot at his kitchen table

while watching the news and force his wife and children to turn off their phones in their own home.

39
By prohibiting speech in support of a candidate or measure in the presence of mail ballots, even in public forums or
at the voter’s request, the Canvassing Restriction also appears to restrict the public’s access to the canvassers’ core
political speech. See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 77 (1976) (Powell, J., concurring) (“[T]he central
First Amendment concern remains the need to maintain free access of the public to the expression.”).

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Texas voters have the right to vote in secret. TEX. ELEC. CODE § 62.0115(b)(2). Nothing,

however, imposes on voters a duty to vote in secret. Electioneering zones and other restrictions on

who can enter polling places often creates de facto secrecy for in-person voters, of course, because

again, as a practical matter, a voter cannot waive other voters’ right to a secret ballot free from

intimidation by inviting his preferred canvasser into the building to persuade them to vote a certain

way. See Burson v. Freeman, 504 U.S. 191, 207–08 (1992) (upholding campaign-free zone outside

the polls based on “common sense” that a was “necessary” to secure the advantages of the secret

ballot and protect the right to vote).

But a voter’s choice to complete his or her mail ballot in the presence of a paid organizer

affects no one else’s right or ability to cast a secret ballot. Indeed, before S.B. 1, mail voters

could—and often did—intentionally vote their ballot in the presence of canvassers for trusted

community groups and advocacy organizations. For example, before S.B. 1, members of OCA and

LUPE often brought their ballots to election events, seeking voting assistance. 40 Members of

retiree chapters of AFT sometimes brought their mail-ballots to chapter meetings and marked and

mailed their ballots together as a group. Tr. at 972:17–23.

The Canvassing Restriction is underinclusive.

The Canvassing Restriction is also underinclusive in several respects, especially in

comparison to the electioneering restrictions applicable to in-person voting.

The electioneering laws, for example, apply on their face to anyone campaigning within

100 feet of the polling station, regardless of compensation, whether they are electioneering “for or

against any candidate, measure, or political party.” TEC §§ 61.003, 85.036. In contrast, the

40
Tr. at 1694:21–1696:8, 1699:24–1702:2, 1706:12–1707:3 (OCA); Tr. at 71:1–72:15, 75:11–17, 119:20–120:18
(LUPE).

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Canvassing Restriction prohibits canvassers receiving “compensation or other benefit” from

interacting with voters to deliver votes for a particular candidate or measure. TEC § 276.015.

In other words, by its text, the Canvassing Restriction does not prohibit paid canvassers

from engaging in the kind of “haranguing” conduct the provision is purportedly concerned with,

so long as the organizers intend to deliver votes (1) against a particular candidate or measure or

(2) for or against a political party. It is unclear to the Court why such haranguing would be more

tolerable from a different class of canvasser—e.g., a paid party staffer or a hungrier, thirstier

volunteer—seeking to deliver votes against their opponents or for a political party generally. 41

The underinclusiveness of the Canvassing Restriction undermines the State Defendants’

argument that it is narrowly tailored to further a compelling government interest. See Reed, 576

U.S. at 172 (“The Town cannot claim that placing strict limits on temporary directional signs is

necessary to beautify the Town while at the same time allowing unlimited numbers of other types

of signs that create the same problem.”); Veterans of Foreign Wars, 760 F.3d at 441 (concluding

that the “obvious underinclusiveness” of limiting undermines any argument that Texas is truly

interested in regulating gambling).

The State Defendants maintain that the Canvassing Restrictions’ sweep is sufficiently

narrowed by the scienter requirement because “the vast majority of the time” canvassers will be

unaware that they are in the presence of a mail ballot. The State Defendants have offered no

evidence demonstrating how often canvassers encounter mail ballots while advocating for a

candidate or issue. Plaintiffs, on the other hand, produced several witnesses who testified that

41
Despite the State Defendants’ unwillingness to define “compensation,” to the extent that it includes items like bottles
of water, bus fare, and t-shirts, the State Defendants have not demonstrated that such nominal gifts cause create an
“actual problem” in need of solving (i.e., that they cause canvassers to “harangue” voters). United Playboy Ent. Grp.,
Inc., 529 U.S. at 813.

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voters regularly produced their mail ballots during in-person interactions with organizers to ask

questions about their ballot or request voting assistance. 42

Both overbroad and underinclusive, the Canvassing Restriction is unconstitutional in most

of its applications, judged in relation to its legitimate applications to voter fraud or coercion.

Moody, 144 S. Ct. at 2397.

The Canvassing Restriction is Unconstitutionally Vague

The Legal Framework

A fundamental principle in our legal system is that laws which regulate persons or entities

must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations,

Inc., 567 U.S. 239, 253 (2012). “A law is unconstitutionally vague if it (1) fails to provide those

targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so

indefinite that it allows arbitrary and discriminatory enforcement.” McClelland v. Katy Indep. Sch.

Dist., 63 F.4th 996, 1013 (5th Cir.), cert. denied 144 S. Ct. 348 (2023).

“A regulation is void for vagueness when it is so unclear that people ‘of common

intelligence must necessarily guess at its meaning and differ as to its application.’” Id. (quoting

Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). When a statute “authorizes or even

encourages arbitrary and discriminatory enforcement,” it is a telltale sign of its unconstitutional

vagueness. Hill v, 530 U.S. at 732; Hiett v. United States, 415 F.2d 664, 670 (5th Cir. 1969)

(“another reason for holding vague statutes void . . . is that they furnish insufficient checks on

Government discretion”).

See id; see also Tr. at 925:9–12, 926:17–928:1 (AFT members have had voters take out their mail-in ballots while
42

engaging in block-walking and door-to-door canvassing and AFT members themselves have filled out their mail
ballots together during chapter meetings).

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“The degree of vagueness that the Constitution tolerates—as well as the relative

importance of fair notice and fair enforcement—depends in part on the nature of the enactment.”

Vill. of Hoffman Ests., 455 U.S. at 498. The Supreme Court has “expressed greater tolerance of

enactments with civil rather than criminal penalties because the consequences of imprecision are

qualitatively less severe.” Id. at 498–99; cf. Citizens United, 558 U.S. at 337 ( “The law before us

is an outright ban, backed by criminal sanctions.”).

When “a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it

operates to inhibit the exercise of (those) freedoms. Uncertain meanings inevitably lead citizens to

steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly

marked.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (cleaned up). In such cases, “a

more stringent vagueness test should apply.” Vill. of Hoffman Ests., 455 U.S. at 499; Keyishian v.

Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603–04 (1967) (“[S]tandards of permissible

statutory vagueness are strict in the area of free expression . . . Because First Amendment freedoms

need breathing space to survive.”); Roark & Hardee LP v. City of Austin, 522 F.3d 533, 552 (5th

Cir. 2008) (cleaned up) (“[A] more stringent vagueness test should apply where a law threatens to

inhibit the exercise of constitutionally protected rights,” especially when it is “capable of reaching

expression sheltered by the First Amendment.”).

Analysis

The Canvassing Restriction is unconstitutionally vague because people of common

intelligence “must necessarily guess at its meaning and differ as to its application.” Connally, 269

U.S. at 391.

Indeed, trial testimony evinced widespread confusion and disagreement about how to

interpret the Canvassing Restriction, not only among Plaintiffs’ members but also among state and

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local government officials tasked with interpreting and applying the laws. See, e.g., Tr. at 496:5–8

(Dallas County EA Michael Scarpello) (“I don’t know what ballot harvesting means,” “it could be

interpreted a lot of different ways based on the definition . . . put into the law.”).

Witnesses were particularly uncertain about how to interpret the terms “physical presence”

and “compensation”—neither of which is defined in the statute—and how the Canvassing

Restriction impacts organizers’ ability to provide voting assistance during their in-person

interactions with voters.

The term “compensation or other benefit” is vague.

It is unclear to Plaintiffs from the text of the Canvassing Restriction whether providing

volunteers food, water, swag, letters of recommendation, academic credit, gas cards, bus fare, free

parking, or even the use of its offices for their advocacy work is unlawful. Nothing in the text of

the Canvassing Restriction explains which, if any of these items, qualifies as “compensation.”

The definition of “benefit”—“anything reasonably regarded as a gain or advantage”—is

no help, considering that it merely defines a term through its synonym. TEC § 276.015(a)(1).

Stating that a benefit is a gain does not help a reasonable person to understand what is or is not

permitted under the statute.

Considered alongside definitions of “compensation” elsewhere in the Election Code, the

meaning of the term “compensation or other benefit” in Section 7.04 becomes even less clear. For

example, the ban on compensated assistance under S.B. 1 § 6.06, codified at TEC § 86.0105,

incorporates by reference the definition of “compensation” set forth in TEX. PENAL CODE § 38.01:

anything reasonably regarded as an economic gain or advantage, including

accepting or offering to accept employment for a fee, accepting or offering
to accept a fee, entering into a fee contract, or accepting or agreeing to
accept money or anything of value.

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TEC § 86.105(f); TEX. PENAL CODE § 38.01. The ban on compensation for mailing another

person’s ballot, codified at TEC § 86.052, on the other hand, defines “compensation” as “any form

of monetary payment, goods, services, benefits, or promises or offers of employment, or any other

form of consideration offered to another person in exchange for depositing ballots.” TEC §

86.052(e). Which of these definitions of “compensation”, if either, should canvassers, voters, and

courts apply to the Canvassing Restriction and how are they distinct from a “benefit”?

Trial testimony by state officials offered no satisfying answers, undermining the State

Defendants’ assertion that the meaning of “compensation or other benefit” is “crystal-clear.” ECF

No. 862. 43 For example, former Election Division Director Keith Ingram opined that providing

volunteers with bus fare was not “compensation” because “[t]hey can get their expenses

reimbursed. That’s not payment.” Tr. at 1904:1–2. The State’s chief voter fraud prosecutor,

Jonathan White, on the other hand, testified that he would need to perform legal research to

determine what kinds of economic benefits would violate the provision. Tr. at 3992:20–3993:21

(conceding that he would need to “review[] the case law” to determine whether a meal, bus fare,

or a gift bag containing a t-shirt constitute prohibited compensation).

This conflicting testimony effectively concedes the vagueness of “compensation or other

benefit.” “[N]otice is insufficient if lay persons are required to ‘perform[ ] the lawyer-like task of

statutory interpretation by reconciling the text of [ ] separate documents.’” United States v. Rybicki,

354 F.3d 124, 158 (2d Cir. 2003) (Jacobs, J., dissenting) (quoting Chatin v. Coombe, 186 F.3d 82,

89 (2d Cir. 1999)). Likewise, courts have found insufficient notice where, as here, those charged

with enforcing a rule lack a shared understanding of its meaning, because their divergent

interpretations are evidence that the rule “impermissibly delegates basic policy matters to

43
Even in their own briefing, the State Defendants treat the terms as interchangeable, defining them by reference to
one another. See ECF No. 862 ¶ 106 (describing “benefit” as “any compensation”) (emphasis altered).

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policemen, judges and juries for resolution on an ad hoc and subjective basis.” Chatin, 186 F.3d at

89 (quoting Grayned, 408 U.S. at 108–09).

The term “physical presence” is vague.

Plaintiffs cannot tell from the text of the Canvassing Restriction how physically proximate

a ballot must be to a volunteer or employee to be criminally liable because the term “physical

presence” is not defined in Section 7.04.

The Court agrees with the State Defendants that Plaintiffs and their members cannot be

held liable for unknowingly canvassing in the presence of a mail ballot, both because of Section

7.04’s scienter requirement (“knowingly”) and because such interactions would not “directly

involve” a mail ballot. TEC § 276.015(e).

In some circumstances, “[t]he Court has recognized that a scienter requirement may

mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant

that his conduct is proscribed.” Vill. of Hoffman Ests, 455 U.S. at 499; see also League of Women

Voters of Fla. Inc, 66 F.4th at 946–47.

Here, the problem is that a person’s knowledge that there is a ballot in the vicinity still does

not tell them whether they are violating the statute. Is it a crime to speak to a voter about a candidate

while the voter’s mail ballot lies nearby on the entryway table? What if the ballot is on the kitchen

table in the next room instead of the entryway? What if the voter brings the ballot to a community

meeting at which Plaintiffs’ employees speak?

A person of “ordinary intelligence” has no way to know where the line is drawn and will

respond with self-censorship of core political speech. See Hill, 530 U.S. at 732 (2000); League of

Women Voters of Fla. v. Fla. Sec’y of State, 66 F.4th 905, 947-48 (11th Cir. 2023) (“We will not

rely on the assumption that a state court enforcing the law would impose a mens rea requirement,

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apply the law with lenity, and require that the defendant’s conduct had the natural and probable

effect of influencing the voter.” (alterations and citation omitted)).

At trial, Mr. Ingram refused to offer a specific distance or any concrete guidance about how

canvassers should determine whether they are in the “physical presence” of a mail ballot, which

can only be determine on a case-by-case basis. See Tr. at 1917:5–14; see also Tr. at 1916:1–4

(stating that the Secretary does not have an official opinion on whether a ballot being within five

or ten feet of a discussion constitutes physical presence under Section 7.04). “Whether or not a

prosecutor agrees with us,” he conceded, “is a different story entirely.” Tr. at 1917:18–19.

Indeed, under these indefinite meanings, it is easy to see how the State Defendants and

County DAs could arbitrarily discriminate in their enforcement of the Canvassing Restriction.

Computer & Commc’ns Indus. Ass’n v. Paxton, No. 1:24-CV-849-RP, 2024 WL 4051786, at *18

(W.D. Tex. Aug. 30, 2024) (citing Smith v. Goguen, 415 U.S. 566, 575 (1974) (“Statutory language

of such a standardless sweep allows prosecutors and juries to pursue their personal predilections.”

(alteration marks omitted)).

The State Defendants dismiss concerns expressed by voters and election officials alike as

“farfetched” and “fanciful hypotheticals.” ECF No. 862 ¶¶ 1018, 1022. Even setting aside the real-

world scenarios in which Plaintiffs’ core political speech were actually chilled, courts considering

vagueness challenges to criminal statutes should be wary of accepting the government’s

interpretations uncritically, considering the potential consequences:

As an abstract exercise, debating fact patterns like these may seem good
fun. But there is nothing entertaining about a 2-year mandatory federal
prison sentence. Criminal statutes are not games to be played in the car on
a cross-country road trip. To satisfy the constitutional minimum of due
process, they must at least provide “ordinary people” with “fair notice of
the conduct [they] punis[h].”

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Johnson v. United States, 576 U.S. 591, 595 (2015). Because the Canvassing Restriction does not

provide such notice, it is unconstitutionally vague on its face under the Fourteenth Amendment.

The Canvassing Restriction is Unconstitutional as applied to Plaintiffs’ Speech.

Beyond its applications to conduct that is already proscribed elsewhere in the Election

Code (i.e., voter fraud and intimidation), the Canvassing Restriction is unconstitutional. Nothing

in the trial record suggests that Plaintiffs’ or their members seek to defraud or intimidate voters.

Thus, as applied to Plaintiffs’ voter outreach activities, the Canvassing Restriction violates

Plaintiffs’ First Amendment freedoms by criminalizing interactions meant to foster engagement

and turnout in the communities they serve. The Canvassing Restriction has created an environment

in which Plaintiffs and their members fear that they risk criminal sanction for assisting or speaking

with voters, which has both chilled their speech and impaired their ability to recruit new members

and volunteers and provide voter assistance.

The breadth of the prohibition not only reaches core political speech but basic common

courtesy, potentially alienating voters and further burdening the effectiveness of Plaintiffs’ political

speech and associative activities. For example, the Canvassing Restriction would prohibit

Plaintiffs’ paid staff members from answering a voter’s question about how to complete S.B. 1’s

identification-number requirement in the presence of his mail-in ballot during an event promoting

a ballot measure. 44 When State Defendants’ counsel suggested that an organizer who confronted a

mail ballot at such an event could just ask the voter to “leave their ballot in the car,” Grace

Chimene, testifying on behalf of the League, responded that she “wouldn’t ask anybody to do

anything with their ballot” and pointed out that a voter might be “intimidated” by questions about

44
This is not a “fanciful hypothetical.” United States v. Williams, 553 U.S. 285, 301 (2008). Indeed, Ms. Chen testified
that community members often brought their mail ballots to political events with questions about their ballots to OCA
events with questions about the voting process and seeking assistance. Tr. at 1698:21–1699:8.

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the physical location of his ballot (and being asked to leave the event if he had brought it along).

Tr. at 1620:15–1621:4. Indeed, counsel’s recommendation is impractical for several reasons, 45 not

the least of which is the disruption of Plaintiffs’ core political communications with awkward,

inconvenient, and suspicion-inducing requests that voters move their ballots elsewhere or leave

the event altogether.

Again, Plaintiffs do not assert a First Amendment right to “harangue” voters as they

complete their ballots. Rather, they are afraid to advocate for ballot measures or candidates in

circumstances where voters have historically brought their mail ballots and/or requested

assistance, because Plaintiffs’ members will either be forced to turn voters away (frustrating both

their free speech and their associations with voters) or expose themselves to criminal liability by

continuing to engage with the voter. The breadth and vagueness of Section 7.04 have compounded

the chilling effect on Plaintiffs’ speech by making it difficult for their members to know what kinds

of interactions with voters are permissible.

Citizens confronted with vague and overbroad laws “inevitably” elect to “steer far wider

of the unlawful zone than if the boundaries of the forbidden areas were clearly marked,” Grayned,

408 U.S. at 109 (cleaned up), but the Constitution does not permit laws that unnecessarily stifle

protected speech, especially not during elections, when “the importance of First Amendment

protections” is at its “zenith.” Meyer, 486 U.S. at 425. “First Amendment freedoms need breathing

space to survive.” Keyishian, 385 U.S. at 603–04.

45
A voter who took a bus to the event or was dropped off by a friend might not have access to a car in which to store
their ballot. And even a voter who drove to the event may be unable to make multiple trips to and from the parking
lot due to a physical disability. It’s not clear that other alternatives, such as leaving the ballot in another room at the
event venue, would be anymore “secure” than permitting the voter to hold onto their ballot in the presence of paid
canvassers, considering the potential for theft and loss.

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The First Amendment protects Plaintiffs’ “right not only to advocate their cause but also to

select what they believe to be the most effective means for so doing.” Meyer, 486 U.S. at 414. By

Plaintiffs’ restricting in-person interactions with voters, Section 7.04 “restricts access to the most

effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one

communication. That it leaves open ‘more burdensome’ avenues of communication, does not

relieve its burden on First Amendment expression.” Id.

In short, the Court concludes that the Canvassing Restriction is unconstitutional under the

First and Fourteenth Amendments, both facially and as applied to Plaintiffs’ voter outreach

activities. The Court now considers the proper scope of relief.

PERMANENT INJUNCTION OF THE CANVASSING RESTRICTION

A party seeking a permanent injunction must prove: (1) that it has succeeded on the merits;

(2) that a failure to grant the injunction will result in irreparable injury; (3) that said injury

outweighs any damage that the injunction will cause the opposing party; and (4) that the injunction

will not disserve the public interest. Valentine v. Collier, 993 F.3d 270, 280 (5th Cir. 2021). The

Court addresses each factor in turn.

First, for the reasons set forth in this order, the Court concludes that the Canvassing

Restriction violates Plaintiff’s First Amendment rights. Plaintiffs have thus succeeded on the

merits of their First Amendment challenge to Sections 7.04 of S.B. 1.

Second, the Court concludes that failure to grant the requested injunction will result in

irreparable injury to Plaintiffs, their members, and other organizers in Texas. Plaintiffs and their

members have established that the Canvassing Restriction has had a chilling effect on their speech

that arises from the credible threat of enforcement. See also Babbitt, 442 U.S. at 302 (“a plaintiff

need not first expose himself to actual arrest or prosecution” to establish a cognizable harm). The

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Supreme Court has long recognized that “[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.

347, 373 (1976). A permanent injunction, as discussed, would remove the threat of enforcement

and the resulting chill on Plaintiffs’ protected speech. Thus, it is an appropriate remedy in this

case.

Third, threatened and ongoing injury to Plaintiffs outweighs any potential harm that an

injunction might cause Defendants. Without injunctive relief, Plaintiffs and their members will

continue to suffer irreparable injury to their constitutional rights. As a general matter, “injunctions

protecting First Amendment freedoms are always in the public interest.” Opulent Life Church v.

City of Holly Springs, 697 F.3d 279, 298 (5th Cir. 2012) (citation and quotation marks omitted);

see also RTM Media, L.L.C. v. City of Houston, 518 F. Supp. 2d 866, 875 (S.D. Tex. 2007) (“It is

clearly in the public interest to enjoin an ordinance that restricts the public’s constitutional right to

freedom of speech.”). To overcome the irreparable injury arising from this infringement on

Plaintiffs’ rights, Defendants must produce “powerful evidence of harm to its interests” to tip the

equities in their favor. Opulent Life Church, 697 F.3d at 297.

Plaintiffs’ requested injunction does not affect any voting or election procedures and thus

does not create the potential for confusion and disruption of the election administration

contemplated by the “Purcell principle.” See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018).

The Purcell principle provides that, as a general rule, federal courts “should not alter state election

laws in the period close to an election.” Democratic Nat’l Comm. v. Wis. State Legislature, 141 S.

Ct. 28 (2020) (Kavanaugh, J., concurring) (upholding Seventh Circuit’s stay of injunction entered

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six weeks before the general election). Purcell’s logic, however, extends only to injunctions that

affect the mechanics and procedures of election law applicable to voting. 46

Moreover, unlike an order requiring affirmative changes to the election process before it

occurs, an injunction against enforcement proceedings is removed in space and time from the

mechanics and procedures of voting. Prosecutions simply do not occur at the polls (or, as the case

may be, during block-walking and candidate forums); they require investigation, evidence, and

due process. Because criminal prosecutions necessarily follow the offending conduct in time, the

only prospective interest that Defendants can plausibly allege would be impaired by injunctive

relief is the deterrent effect of the Canvassing Restriction. Given that its chilling effect on speech

is the very feature that renders the Canvassing Restriction constitutionally infirm, however,

deterring violations is unlikely to serve the public interest. See Ingebretsen on behalf of

Ingebretsen v. Jackson Public Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996) (where an enactment is

unconstitutional, “the public interest [is] not disserved by an injunction preventing its

implementation”); G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir.

1994) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional

rights.”).

The public interest is not served by Texas officials’ enforcement of a restriction on speech

that Plaintiffs have shown violates their fundamental rights under the First Amendment. Plaintiffs’

core political speech has been chilled and will continue to be chilled absent injunctive relief.

46
See, e.g., RNC v. DNC, 140 S. Ct. 1205, 1207 (2020) (extension of absentee ballot deadline); Mi Familia Vota v.
Abbott, 834 F. App’x 860, 863 (5th Cir. 2020) (mask mandate exemption for voters); Richardson v. Tex. Sec’y of
State, 978 F.3d 220, 244 (procedures for authenticating mail-in ballot signatures); Tex. Alliance for Retired Ams. v.
Hughs, 976 F.3d 564, 566–67 (5th Cir. 2020) (new ballot type eliminating straight-ticket voting); Tex. Democratic
Party v. Abbott, 961 F.3d 389, 411–12 (5th Cir. 2020) (absentee ballot eligibility requirements); DNC v. Wis. State
Leg., 141 S. Ct. at 31 (extension of absentee ballot deadline).

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Accordingly, the balance of the equities and the public interest weigh in favor of a permanent

injunction.

Therefore, Plaintiffs’ request for injunctive relief is granted.

CONCLUSION

For the foregoing reasons, the Court hereby DECLARES that the Canvassing Restriction

created by Section 7.04 of S.B. 1, codified at Texas Election Code § 276.015 is:

(1) an invalid restriction on speech, both on its face and as applied to Plaintiffs’ speech, in

violation of the First Amendment to the United States Constitution as incorporated to Texas by the

Fourteenth Amendment of the United States Constitution; and

(2) unconstitutionally vague in violation of the due process clause the Fourteenth

Amendment of the United States Constitution.

It is FURTHER ORDERED that the Intervenor-Defendants’ motion for summary

judgment (ECF No. 608) is DENIED as to Plaintiffs’ First Amendment speech and Fourteenth

Amendment due process claims.

IT IS FURTHER ORDERED that the Attorney General and Secretary of State of Texas

and the District Attorneys of Travis County, Dallas County, Hidalgo County, and the 34th Judicial

District, and their respective agents, officers, employees, and successors, and all persons acting in

concert with each or any of them, are IMMEDIATELY AND PERMANENTLY ENJOINED

from implementing, enforcing, or giving any effect to the Canvassing Restriction created by

Section 7.04 of S.B. 1, codified at Texas Election Code § 276.015, that violates Plaintiffs’ free

speech and due process rights under the First and Fourteenth Amendments to the U.S. Constitution.

Thus, the Attorney General may not investigate potential violations of TEC § 276.015, refer

potential violations of TEC § 276.015 to DAs for investigation or prosecution, or prosecute any

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potential violation of TEC § 276.015 with the consent or at the request of any county or local

prosecutor or appointment pro tem by a district judge. 47 The County DAs are permanently enjoined

from deputizing the Attorney General, appointing him pro tem, or seeking his appointment pro tem

from or by a district judge to prosecute alleged violations of TEC § 276.015 that occur within their

jurisdictions.

It is so ORDERED.

SIGNED this 28th day of September, 2024.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

47
In the interest of clarity, the Attorney General constitutes an “agent” or “person acting in concert with” a County
DA under the terms of this order when he prosecutes crimes under the Election Code with the consent of, at the request
of, or in cooperation with such County DA.

78