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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`SAN ANTONIO DIVISION
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`NO. SA-20-CV-00830-JKP
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`MI FAMILIA VOTA, TEXAS STATE
`CONFERENCE OF THE NATIONAL
`ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED
`PEOPLE, GUADALUPE TORRES,
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`v.
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`GREG ABBOTT, GOVERNOR OF
`TEXAS; AND RUTH HUGHS, TEXAS
`SECRETARY OF STATE;
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`Defendants.
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`Plaintiffs,
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Plaintiffs Mi Familia Vota, Texas State Conference of the National
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`Association for the Advancement of Colored People and Guadalupe Torres’s Emergency
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`Motion for Temporary Restraining Order and Preliminary Injunction and Defendants Governor
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`Greg Abbott and Secretary of State Ruth Hughs’ Response.1 ECF Nos. 53, 55. At the status
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`hearing held October 22, 2020, the parties agreed to address and present this motion as a Motion
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`for Preliminary Injunction, only. Upon consideration of the Motion for Preliminary Injunction,
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`briefs, evidence and arguments presented at a hearing held October 26, 2020, the Court
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`concludes Plaintiffs’ Motion for Preliminary Injunction shall be GRANTED in part and
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`DENIED in part.
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`1 In this Order, the Court will refer to the parties as follows:
`(1) Plaintiffs Mi Familia Vota, Texas State Conference of the National Association for the Advancement of
`Colored People and Guadalupe Torres: collectively, “Plaintiffs”;
`(2) Plaintiffs individually: “Mi Familia Vota”, “Texas NAACP”, and “Ms. Torres”; and
`(3) Defendants Greg Abbott and Ruth Hughs: collectively, “the State”;
`(4) Defendants individually: Greg Abbott, in his official capacity as Governor of the State of Texas:
`“Governor Abbott”; Ruth Hughs, in her official capacity as Texas Secretary of State: “Secretary Hughs”.
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`1
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 2 of 35
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`The Court concludes Exemption 8 in Governor Abbott’s Executive Order GA-29,
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`which exempts those who are “voting, assisting a voter, serving as a poll watcher, or actively
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`administering an election” from compliance with the statewide mask mandate, violates Section
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`2 of the Voting Rights Act because it creates a discriminatory burden on Black and Latino
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`voters. For this reason, exemption 8 is invalid and void. The remaining provisions of Executive
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`Order GA-29, including the enforcement provisions and other exemptions, remain intact.2 All
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`other requested injunctive relief is denied.
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`PROCEDURAL BACKGROUND
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`Plaintiffs filed their Original Complaint on July 16, 2020. ECF No. 1. In this action,
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`Plaintiffs generally contend Texas election procedures create unsafe conditions at polling sites
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`which preclude certain protected classes of people from voting during the early voting period
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`or in person on election day, November 3, 2020 (collectively “the 2020 election”). Plaintiffs
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`bring this action to ensure “practical and constitutionally-required measures that both protect
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`the public health and guarantee the right to vote” to all Texas citizens, specifically Black and
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`Latino citizens.
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`On September 7, 2020, this Court granted the State’s Motion to Dismiss Plaintiffs’
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`Complaint based upon a finding the Court lacked subject matter jurisdiction. ECF No. 44. This
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`Court concluded Plaintiffs did not challenge the constitutionality of any specific Election Code
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`provision, but instead, generally challenged the prudence of “Texas’s election laws” and
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`2Within its Article III powers, this Court has jurisdiction and power to pass upon the constitutionality of an act
`of Congress or Executive body; however, it may not “order relief that would require the Governor of a State to
`essentially enact legislation.” Mi Familia Vota v. Abbott, 20-50793, 2020 WL 6058290, at *6 (5th Cir. Oct. 14,
`2020). Consequently, this Court is not presented with and does not address the issue regarding the
`constitutionality of the issuance of the Executive Order. See Tex. League of United Latin Am. Citizens v. Hughs,
`20-50867, 2020 WL 6023310, at *13 (5th Cir. Oct. 12, 2020)(Judge Ho concurrence stating, “under our
`Constitution, it is for the Texas Legislature through the legislative process—and not for the Governor or the
`judiciary by executive or judicial fiat—to determine how best to maximize voter access as well as ballot
`security.”) For this reason, the Court makes clear it is not directing Governor Abbott to act nor endorsing the
`constitutionality of the Executive Order, but is merely acting within this Court’s Article III power to “pass on
`the constitutionality” of Exemption 8 contained within the Executive Order. See Mi Familia Vota v. Abbott, 20-
`50793, 2020 WL 6058290, at *6;
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`2
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 3 of 35
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`“Texas’s election policies” for combating the COVID-19 virus within the 2020 election. Id.
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`This Court concluded it lacked Article III power to grant the injunctive relief Plaintiffs
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`requested based upon the general challenge, finding the requested relief concerned the
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`administration of elections and
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`implementation of election procedures which are
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`constitutionally committed to the state legislative branch and its designated governmental
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`bodies. Id. Therefore, any judicial directive would require an initial policy determination
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`outside of prescribed separation of power and allowed judicial discretion. Id. In addition, the
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`requested judicial directive would require an undertaking that would inherently demonstrate a
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`lack of respect due the legislative branch and its designated governmental actors. Id. Based
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`upon these findings, this Court concluded the case, as plead and argued, presented a
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`nonjusticiable political question – specifically, the relief sought to remedy the alleged injuries
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`was beyond the Court’s Article III power to grant. See ECF No. 44; Mi Familia Vota v. Abbott,
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`SA-20-CV-00830-JKP, 2020 WL 5366291, at *4-8 (W.D. Tex. Sept. 7, 2020), aff’d in part,
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`rev’d in part and remanded, 20-50793, 2020 WL 6058290 (5th Cir. Oct. 14, 2020).
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`On October 14, 2020, the Fifth Circuit Court of Appeals affirmed this Court’s judgment
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`in part and reversed and remanded this matter on a limited issue not previously presented to
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`this Court, stating:
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`Were the district court to conclude that the exemption from wearing a mask in
`public places contained in Executive Order GA-29 for pollworkers, voters, and
`others in polling places violated Section 2 of the Voting Rights Act, the district
`court might excise that provision if it concluded that this would redress the
`injuries the Plaintiffs have alleged. It is at least conceivable that such a remedy
`would not materially or substantially affect the ongoing election, but that would
`be a matter for the district court to determine.
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`Mi Familia Vota v. Abbott, No. 20-50793, 2020 WL 6058290, at *5 (5th Cir. Oct. 14, 2020).
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`In this instruction, the Fifth Circuit handed down three issues to be determined on
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`remand: whether the mask-mandate Exemption 8 violates Section 2 of the Voting Rights Act
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`as applied; whether this Court can resolve the injuries the Plaintiffs allege by “excising”
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`3
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 4 of 35
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`(invalidating) the mask-mandate Exemption 8 from the Executive Order, and; whether excising
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`the mask-mandate Exemption 8 would “materially or substantially affect the ongoing election.”
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`Id.
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`FACTUAL BACKGROUND
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`Upon the filing of Plaintiffs’ Amended Complaint, this matter is now before this Court
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`for determination of these three issues with Plaintiffs’ Motion for Preliminary Injunction.
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`Texas government officials have taken steps to mitigate public health risks associated
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`with the COVID-19 pandemic. See Mi Familia Vota v. Abbott, 2020 WL 6058290, at *1.
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`Among these steps, are advisories from Secretary Hughes and Executive Orders issued by
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`Governor Abbott. The Executive Order that is the subject of this action, GA-29, issued on July
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`2, 2020 (“the Executive Order”). In the Executive Order Governor Abbott expressed his views
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`regarding ways in which Texas citizens can safely resume activities following the mandated
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`extended quarantine and maintain public health by mitigating the risk of COVID-19 spread.3
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`Governor Abbott stated,
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`• “as Texas reopens in the midst of COVID-19, increased spread is to be
`expected, and the key to controlling the spread and keeping Texans safe
`is for all people to consistently follow good hygiene and social-
`distancing practices,”
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`• “due to recent substantial increases in COVID-19 positive cases, and
`increases in the COVID-19 positivity rate and hospitalizations resulting
`from COVID-19, further measures are needed to achieve the least
`restrictive means for reducing the growing spread of COVID-19, and to
`avoid a need for more extreme measures,”
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`• “I have joined the medical experts in consistently encouraging people to
`use face coverings, and health authorities have repeatedly emphasized
`that wearing face coverings is one of the most important and effective
`tools for reducing the spread of COVID-19;”
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`• “given the current status of COVD-19 in Texas, requiring the use of face
`coverings is a targeted response that can combat the threat to public
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`3 Executive Order GA-29 (July 2, 2020): https://open.texas.gov/uploads/files/organization/opentexas/EO-GA-
`29-use-of-face-coverings-during-COVID-19-IMAGE-07-02-2020.pdf.
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`4
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 5 of 35
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`health using the least restrictive means, and if people follow this
`requirement, more extreme measures may be avoided,” and
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`• “wearing a face covering is important not only to protect oneself, but
`also to avoid unknowingly harming fellow Texans, especially given that
`many people who go into public may have COVID-19 without knowing
`it because they have no symptoms.”
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`Executive Order GA-29; see Mi Familia Vota v. Abbott, 2020 WL 6058290, at *1–2.
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`Based upon these assessments, Governor Abbott required
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`Every person in Texas shall wear a face covering over the nose and mouth when
`inside a commercial entity or other building or space open to the public, or when
`in an outdoor public space, wherever it is not feasible to maintain six feet of
`social distancing from another person not in the same household.
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`Executive Order GA-29; see Mi Familia Vota v. Abbott, 2020 WL 6058290, at *1–2. The
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`Executive Order then enumerated eleven exemptions from the mask mandate, which include
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`children younger than ten, those with medical conditions or disabilities, while seated at a
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`restaurant to eat or drink, while engaging in exercise outdoors, and while engaging in religious
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`worship. The exemptions also provided the option for counties to opt-out of the mask mandate
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`if a county judge certified it met requisite criteria to do so.4 The mask-mandate exemption that
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`is the subject of this action is Exemption 8:
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`4 The exemptions from the mandatory mask mandate are:
`1. any person younger than 10 years of age;
`2. any person with a medical condition or disability that prevents wearing a face covering;
`3. any person while the person is consuming food or drink, or is seated at a
`restaurant to eat or drink;
`4. any person while the person is (a) exercising outdoors or engaging in physical activity outdoors, and (b)
`maintaining a safe distance from other people not in the same household;
`5. any person while the person is driving alone or with passengers who are part of the same household as the
`driver;
`6. any person obtaining a service that requires temporary removal of the face covering for security surveillance,
`screening, or a need for specific access to the face, such as while visiting a bank or while obtaining a personal
`care service involving the face, but only to the extent necessary for the temporary removal;
`7. any person while the person is in a swimming pool, lake, or similar body of water;
`. . .
`9. any person who is actively providing or obtaining access to religious worship, but wearing a face covering is
`strongly encouraged;
`10. any person while the person is giving a speech for a broadcast or to an audience; or
`11. any person in a county (a) that meets the requisite criteria promulgated by the Texas Division of Emergency
`Management (TDEM) regarding minimal cases of COVID-19, and (b) whose county judge has affirmatively
`opted-out of this face-covering requirement by filing with TDEM the required face-covering attestation form—
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`5
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 6 of 35
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`8. any person who is voting, assisting a voter, serving as a poll watcher, or
`actively administering an election, but wearing a face mask is strongly
`encouraged.
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`Executive Order GA-29. Finally, the Executive Order declared a person’s failure to wear a
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`mask under these conditions cannot be punishable by criminal offense or penalty, directing,
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`Local law enforcement and other local officials, as appropriate, can and should
`enforce this executive order, . . . as well as local restrictions that are consistent
`with this executive order and other effective executive orders. But no law
`enforcement or other official may detain, arrest, or confine in jail any person for
`a violation of this executive order or for related non-violent, non-felony offenses
`that are predicated on a violation of this executive order . . . This executive order
`hereby prohibits confinement in jail as a penalty for the violation of any face-
`covering order by any jurisdiction. Executive Order GA-28 is hereby amended
`to delete from paragraph number 15 the phrase: “, but no jurisdiction can impose
`a civil or criminal penalty for failure to wear a face covering.”
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`Id.
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`Plaintiffs filed suit in July, shortly after the Executive Order issued.5 In their Amended
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`Complaint, Plaintiffs narrow the challenged action to mask-mandate Exemption 8 in the
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`Executive Order as violative of Section 2 of the Voting Rights Act, as applied. ECF No. 64,
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`pars. 96-106. Plaintiffs base their cause on the premise that Black and Latino voters experience
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`a disproportate adverse effect than other races caused by the COVID-19 pandemic because
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`these minority groups experience higher incidences of infection, hospitalization, and fatalities,
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`and contraction of the disease creates higher incidences of serious illness over mild or
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`asymptomatice response. Based upon this increased risk to their good health and well-being to
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`themselves and their families, Plaintiffs allege these protected racial classes face greater risk
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`of exposure and contraction of the disease by voting in person due to the exposure to large
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`groups of people in this setting. Id. at pars. 1-9, 21-95. Given this heightened risk of exposure
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`provided, however, that wearing a face covering is highly recommended, and every county is strongly
`encouraged to follow these face-covering standards.
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` 5
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` Plaintiffs originally challenged advisories issued by Secretary Hughes; however, on appeal, they narrowed the
`challenge to the Executive Order, only, and cited specific Election Code provisions. Following direction from the
`Fifth Circuit and in the Amended Complaint, the challenged action is now limited to mask-mandate Exemption 8
`in the Executive Order as violative of Section 2 of the Voting Rights Act.
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`6
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 7 of 35
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`to COVID-19, Plaintiffs posit that Exemption 8, which allows people to not wear masks while
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`at a polling site presents substantial health risks that creates fear of voting in the Black and
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`Latino people. As a result, Plaintiffs argue Black and Latino voters in Texas are forced to make
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`an unacceptable choice with respect to the 2020 election: exercising their right to vote - or -
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`protecting their own health and lives and that of their loved ones and community by staying
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`home. Id. Because the increased health risk and physical health barriers will de facto force
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`voters represented by Plaintiffs out of the political process if left unmitigated, Plaintiffs contend
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`the mask-mandate exemption to GA-29 violates Section 2 of the Voting Rights Act, as applied.
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`Specifically, the foundation of Plaintiffs’ cause of action is
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`“[t]he disproportionate infection rate and the more severe health consequences
`that Black and Latino people face from the coronavirus mean that voting
`procedures that fail to provide the necessary health and safety protections to all
`voters in the context of this pandemic will disproportionately burden the rights
`of Black and Latino voters, in particular. Thus, Texas’s mask exemption for
`polling places a discriminatory burden on the Black and Latino communities’
`right to participate in the voting process on account of their race.
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`Id. at par. 52. To eliminate this racially-discriminatory deterrence on protected classes of
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`people within the context of the 2020 election, Plaintiffs contend an adequate remedy of this
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`disparate impact would be to invalidate Exemption 8. This invalidation would provide
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`Plaintiffs the same opportunity as all other classes of people: the opportunity to vote in as safe
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`an environment as possible by taking proven measures that alleviate the risk of infection and
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`spread of COVID-19.
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`Plaintiffs seek to eliminate the alleged discriminatory deterrence from voting and
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`disparate impact created by Exemption 8 of the Executive Order by seeking preliminary
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`injunction, requesting this Court:
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`a. Order that the following exemption from wearing a mask in public places
`contained in Executive Order GA-29: “8. any person who is voting, assisting
`a voter, serving as a poll watcher, or actively administering an election” is
`invalid and shall be excised;
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`7
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 8 of 35
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`b. Order that those provisions of Election Advisory No. 2020-19 providing that
`“There is no authority under Texas law to require voters to wear face
`coverings when presenting to vote” and that suggest face coverings are not
`mandatory at polling locations are invalid and shall be excised;
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`c. Order Defendants to take all necessary and appropriate steps to implement
`the foregoing excisions;
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`d. Retain jurisdiction to ensure all Defendants’ ongoing compliance with the
`foregoing orders;
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`e. Grant such other and further relief that this Court deems just and
`appropriate.
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`ECF No. 64, p. 26.
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`I.
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`STANDING
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`ANALYSIS
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`Before addressing the sustantive merits of Plaintiffs’ claims, the Court must take up the
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`State’s challenge to Plaintiffs’ standing to bring the asserted cause of action because standing
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`is a threshold determination. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102
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`(1998); United States v. 2004 Ferrari 360 Modeno, 902 F. Supp. 2d 944, 951 (S.D. Tex. 2012),
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`aff’d, 544 Fed. Appx. 545 (5th Cir. 2013).
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`The State contends all three plaintiffs lack Article III standing to challenge the
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`Executive Order. The State argues the Organizational Plaintiffs lack standing because they
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`cannot show they, as organizations, will suffer an injury-in-fact. Further, while a diversion of
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`resources can constitute a requisite injury, the Organizational Plaintiffs fail to satisfy this injury
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`under these circumstances. The State further contends the injury of disparate impact of
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`Exemption 8 cannot be traced to Governor Abbott or Secretary Hughs. Rather, the disparate
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`impact can only be created by COVID-19. Finally, the State argues there is no possibility of
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`redressing Plaintiff’s asserted injury of disparate impact because Governor Abbott does not
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`8
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 9 of 35
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`have the power to enforce the Executive Order and exemptions within the Executive Order;
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`only local officials hold that power, and these officials are not a party in this action.
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`“The law of Article III standing, which is built on separation-of-powers principles,
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`serves to prevent the judicial process from being used to usurp the powers of the political
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`branches.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017); Inclusive
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`Communities Project, Inc. v. Dep’t of Treasury, 946 F.3d 649, 655 (5th Cir. 2019). If
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`challenged, to establish this Article III standing, a plaintiff must demonstrate: (1) it suffered
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`(or will suffer) an injury in fact; (2) that is fairly traceable to the challenged conduct of the
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`defendant (causation); and (3) that is likely to be redressed by a favorable judicial decision
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`(redressability). See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The same
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`requirements also apply to entities, such as the Organizational Plaintiffs, who seek to establish
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`they have standing as a representative of individual members or class. See OCA-Greater
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`Houston v. Texas, 867 F.3d 604, 609-10 (5th Cir. 2017). In the preliminary-injunction context,
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`plaintiffs must make a “clear showing” of standing to maintain the injunction. Tex. Democratic
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`Party v. Abbott, 20-50407, 2020 WL 6127049, at *4 (5th Cir. Oct. 14, 2020); Barber v. Bryant,
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`860 F.3d 345, 352 (5th Cir. 2017).
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`Even though Article III requires a causal connection between a plaintiff’s injury and
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`the defendant’s challenged conduct, it doesn’t require a showing of proximate cause or that
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`“the defendant’s actions are the very last step in the chain of causation.” Bennett v. Spear, 520
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`U.S. 154, 169 (1997). Causation, for example, exists when the defendant’s actions produce a
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`“determinative or coercive effect upon the action of someone else,” resulting in injury;
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`however, it does not exist when the Plaintiff’s injuries are “the result of the independent action
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`of some third party not before the court.” Id. at 167. Nor can any asserted injury be “self-
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`inflicted.” Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 358 (5th Cir. 1999).
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`9
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`The instant case has two types of plaintiffs: the individual plaintiff and the two
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`Organization Plaintiffs. “[I]n the context of injunctive relief, one plaintiff’s successful
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`demonstration of standing ‘is sufficient to satisfy Article III’s case-or-controversy
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`requirement.’” Tex. Democratic Party v. Abbott, 2020 WL 6127049, at *5 (quoting Texas v.
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`United States, 945 F.3d 355, 377–78 (5th Cir. 2019)); see also Richardson v. Tex. Sec’y of
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`State, SA-19-CV-00963-OLG, 2020 WL 5367216, at *6 (W.D. Tex. Sept. 8, 2020). Review of
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`the record and the parties’ arguments reveal Mi Familia Vota satisfies the three elements to
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`establish standing to bring this action. Accordingly, the Court will explain why this Plaintiff
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`satisfied its burden, and for efficiency, the Court will decline to specifically analyze whether
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`the remaining Plaintiffs also satisfy the three elements to establish standing.
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`1. First Element: Injury In Fact
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`Organizations can establish the first standing element, injury in fact, under two theories:
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`“associational standing” or “organizational standing.” OCA-Greater Hous., 867 F.3d at 612;
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`Tenth St. Residential Ass’n v. City of Dallas, Texas, 968 F.3d 492, 500 (5th Cir. 2020). The
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`Court will determine, first, whether organizational standing exists.
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`“For a threatened future injury to satisfy the imminence requirement, there must be at
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`least a ‘substantial risk’ that the injury will occur.” Stringer v. Whitley, 942 F.3d 715, 721 (5th
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`Cir. 2019) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). Further,
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`“[t]he injury alleged as an Article III injury-in-fact need not be substantial; it need not measure
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`more than an identifiable trifle.” OCA-Greater Hous., 867 F.3d at 612. To establish
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`organizational standing, “an organization may establish injury in fact by showing it diverted
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`significant resources to counteract the defendant’s conduct; hence, the defendant’s conduct
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`significantly and ‘perceptibly impaired’ the organization’s ability to provide its ‘activities—
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`with the consequent drain on the organization’s resources ....’” N.A.A.C.P. v. City of Kyle, Tex.,
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`626 F.3d 233, 238 (5th Cir. 2010) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363
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`10
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`(1982)). Such injury must be “concrete and demonstrable.” Id. “The fact that the added cost
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`has not been estimated and may be slight does not affect standing, which requires only a
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`minimal showing of injury.” Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th
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`Cir. 2007), aff’d, 553 U.S. 181 (2008).
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`Through the declaration of Angelica Razo, its Texas Director, Mi Familia Vota presents
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`evidence its primary mission is “to build Latino political power by expanding the electorate,
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`strengthening local infrastructures, and through year-round voter engagement.” This mission
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`consists of public education, voter registration, and voter engagement, with operations in
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`Texas, Arizona, California, Colorado, Florida, and Nevada. Its “election-related work usually
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`involves facilitating voter registration and voter education, voter outreach and civic education,
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`particularly ‘getting out the vote’ among its members.” See ECF No. 53-1, Declaration of
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`Angelica Razo (version submitted at Hearing on 10/2/6/2020).
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`Through this same declaration, Mi Familia presents sufficient evidence its injury-in-
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`fact is the additional time, effort and money expended to try to make polling places safer for
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`its targeted voters and these resources would have otherwise been spent educating targeted
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`voters on issues central to its mission. Id. Through her declaration, Ms Razo demonstrates Mi
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`Familia Vota has been forced to expend additional time and resources to try to make polling
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`places safer and this time would have been otherwise spent educating voters on issues central
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`to its mission. Id. This additional time and resources entailed seeking redress from Secretary
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`Hughs by letter in March 2020, urging her to take immediate action to make voting safer,
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`including by making in-person voting safer; working with county election officials, county by
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`county, to learn what their varying pandemic election policies are in order to accurately inform
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`voters; participating with Dallas V.O.T.E.S. (Voting Openly Trouble-Free Equitably Safely)
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`Coalition to work with the Dallas County Elections Department and the Dallas County
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`Commissioners Court to require and provide voters and poll workers with masks at polling
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 12 of 35
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`locations, and; fielding many more calls from voters in the communities they serve, who are
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`extremely concerned about how to vote during the pandemic. Id.
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`The demonstrated additional resources exhausted is in line with other recent persuasive
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`findings of injury-in-fact by organizational plaintiffs in similar context. See e.g. OCA, 867 F.3d
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`at 612 (injury was not large, but challenged statute perceptibly impaired OCA’s ability to “get
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`out the vote”); Scott v. Schedler, 771 F.3d 831, 836-39 (5th Cir. 2014)(NAACP spent more
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`time on voter registration drives); Lewis v. Hughs, No. 5:20-CV-00577-OLG, 2020 WL
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`4344432, at *10 (W.D. Tex. July 28, 2020) (NAACP’s educational efforts to counteract
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`restrictions’ effect on right to vote); Common Cause Ind. v. Lawson, 937 F.3d 944, 952 (7th
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`Cir. 2019) (citing cases recognizing standing with similar diversions of resources).
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`For these reasons, Ms. Razo’s declaration is sufficient to establish Mi Familia Vota
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`holds organizational standing, and therefore, satisfies the first element.
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`2. Elements Two and Three: Traceability (Causation) and Redressability
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`The State argues Plaintiffs cannot satisfy the two prongs of traceability and
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`redressability to establish standing. The State contends the mask-mandate exemption in the
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`Executive Order will not cause the harm Plaintiffs allege and cannot be traced to Governor
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`Abbott or Secretary Hughs. The State contends any injunctive relief will not redress Plaintiffs’
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`alleged discriminatory harm because they make a personal choice to sacrifice their right to vote
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`that is not caused by Exemption 8 but by COVID-19.
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`To establish the “traceability” causal connection between the injury and the conduct
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`complained of, the injury must be “fairly ... trace[able] to the challenged action of the
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`defendant, and not ... th[e] result [of] the independent action of some third party not before the
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`court.” Lujan v. Defs. of Wildlife, 504 U.S. at 560–61; Simon v. Eastern Ky. Welfare Rights
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`Organization, 426 U.S. 26, 41–42 (1976).
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 13 of 35
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`To satisfy redressability, a plaintiff must show “it is likely, as opposed to merely
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`speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth,
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`Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The relief sought need not
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`completely cure the injury, however; it is enough if the desired relief would lessen it. See
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`Sanchez v. R.G.L., 761 F.3d 495, 506 (5th Cir. 2014). However, “[r]elief that does not remedy
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`the injury suffered cannot bootstrap a plaintiff into federal court.” Steel Co., 523 U.S. at 107.
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`The racial-bias challenge of Exemption 8 in the Executive Order issued by Governor
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`Abbott is traceable to him and redressable by him, as well as by the Secretary of State who
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`serves as the “chief election officer of the state.” Governor Abbott is the author and executive
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`who promulgated the Executive Order and all exemptions and enforceability provisions
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`therein. Consequently, any unconstituional racially-disparate effect of the mandates therein are
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`certainly traceable to Governor Abbott as the author. Similarly, as the author and executive
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`who promulgated the Executive Order, Governor Abbott holds the power to omit any portion
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`found to be in violation of the Voting Rights Act as racially discriminatory in its application,
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`thereby redressing any alleged injury. Within the Executive Order, itself, Governor Abbott
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`pronounces his authority to enforce the mandates therein and pronounces how such mandates
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`shall be enforced.6 In any event, if the requested relief of invalidation of Exemption 8 were
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`granted, this invalidation can redress the alleged injury by simply nullifying that portion of the
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`Executive Order.
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`Further, within the Executive Order, Governor Abbott orders that failure to comply with
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`the mask mandate is not a criminal offense and may not be punishable by criminal penalty,
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`detention, arrest or confinement in jail “or for related non-violent, non-felony offenses that are
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`6 The Executive Order states Governor Abbott “’is responsible for meeting ...the dangers to the state and people
`presented by disasters’ under Section 418.011 of the Texas Government Code, and the legislature has given the
`governor broad authority to fulfill that responsibility;” and “NOW, THEREFORE, I, Greg Abbott, Governor of
`Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do
`hereby order the following on a statewide basis ….”
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`Case 5:20-cv-00830-JKP Document 75 Filed 10/27/20 Page 14 of 35
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`predicated on a violation of this executive order.” Executive Order GA-29. Therefore, any
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`ruling in favor of Plaintiffs would not create a criminal offense to anyone by the language and
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`terms of the Executive Order, itself. All other provisions would remain in place were the Court
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`to rule in Plaintiffs’ favor.
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`The Secretary “is the ‘chief election officer of the state’ and is instructed by statute to
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`‘obtain and maintain uniformity in the application, operation, and interpretation of this code
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`and of the election laws outside this code.’” OCA, 867 F.3d at 613-14 (citing Tex. Elec. Code
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`§§ 31.001(a), 31.003). Substantial recent opinions pertaining to other challenges to Secretary
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`Hughs’s actions within the context of the 2020 election rejected the exact same traceability and
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`redressability arguments by the Secretary and concluded those organizational plaintiffs
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`satisfied the second and third elements to establish standing as to Secretary Hughs. Id.; Lewis
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`v. Hughs, 2020 WL 4344432, at *9.
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`Therefore, the Court finds Plaintiffs made a clea