Case: 20-50667     Document: 00515558494         Page: 1     Date Filed: 09/09/2020




           United States Court of Appeals
                for the Fifth Circuit
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         September 9, 2020
                                  No. 20-50667                             Lyle W. Cayce
                                                                                Clerk

   Texas Democratic Party; Democratic Senatorial
   Campaign Committee; Democratic Congressional
   Campaign Committee,

                                                           Plaintiffs—Appellees,

                                       versus

   Ruth R. Hughs,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Western District of Texas
                             USDC No. 5:20-CV-8


   Before Higginbotham, Smith, and Oldham, Circuit Judges.
   Per Curiam:
          Plaintiffs sued the Texas Secretary of State Ruth Hughs under 42
   U.S.C. § 1983 for allegedly imposing a voter-registration requirement that
   violates federal law. The Secretary of State moved to dismiss under Federal
   Rule of Civil Procedure 12(b)(1) and (b)(6). The Secretary argued, inter alia,
   that she enjoys sovereign immunity from suit because she has no connection
   to the enforcement of the allegedly unlawful registration requirement. See Ex
   parte Young, 

, 157 (1908). The district court denied her motion.
Case: 20-50667      Document: 00515558494           Page: 2    Date Filed: 09/09/2020




                                     No. 20-50667


   The Secretary noticed an interlocutory appeal. See Mitchell v. Forsyth, 

, 526–27 (1985). Plaintiffs moved our court for summary affirmance
   or dismissal of the Secretary’s appeal as frivolous.
          The appeal is far from frivolous. It presents an important question that
   has not been resolved by our court: whether and to what extent Ex parte
   Young’s exception to sovereign immunity permits plaintiffs to sue the
   Secretary in an as-applied challenge to a law enforced by local officials. We
   did not resolve that question in OCA-Greater Hous. v. Texas, 

   (5th Cir. 2017). That case involved a facial challenge under the Voting Rights
   Act. See

see also

(holding “[s]overeign immunity has no
   role to play here” because the Voting Rights Act validly abrogated it). Nor
   did we resolve it in Tex. Democratic Party v. Abbott, 

(5th Cir.
   2020). To the contrary, that case recognized that “[t]he precise scope of [Ex
   parte Young’s] ‘some connection’ requirement is still unsettled.”

   see also

n.21 (“Our decisions are not a model of clarity on what
   ‘constitutes a sufficient connection to enforcement.’” (quoting City of Austin
   v. Paxton, 

, 999 (5th Cir. 2019))).
          Plaintiffs also rely on our decision last week in Lewis v. Hughs, 20-
   50654 (Sept. 4, 2020). In that related case, we granted the plaintiffs’ motion
   for summary affirmance of the Secretary’s interlocutory appeal. But Lewis is
   now pending before our court for en banc reconsideration. We refuse to
   prejudge the outcome of that reconsideration. The openness of the question
   alone is sufficient reason to deny plaintiffs’ requested relief.
          The motion for summary affirmance is DENIED.
          The motion to dismiss the Secretary’s appeal as frivolous is
   DENIED.
          Judge Higginbotham would grant the motion for summary affirmance.




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