Technology is changing the way we vote. It has not eliminated controversy about the way votes are recorded and verified. We must decide whether voters have standing to pursue complaints about an electronic voting machine that does not produce a contemporaneous paper record of each vote. Because we conclude that most of the voters' allegations involve generalized grievances about the lawfulness of government acts, and because their remaining claims fail on their merits, we reverse the court of appeals' judgment and render judgment dismissing the case.
Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State.
Following certification and adoption, additional testing is required for direct recording electronic machines (DREs). DREs are designed "to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device." Id. § 121.003(12). DREs store individual votes and vote totals electronically, id., usually in several places within the unit, see Daniel P. Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 FORDHAM L.REV. 1711, 1724 (2005). Immediately after receiving a DRE from a vendor, the election records custodian must perform a hardware diagnostic test and a "public test of logic and accuracy." TEX. ELEC.CODE § 129.021. The latter involves creating a testing board that will then cast votes, verifying that each contest can be voted and is accurately counted. Id. § 129.023. The test must evaluate, to the extent possible, undervotes, overvotes, straight-party votes, and crossover votes. Id. It must also account for write-in and provisional votes. Id. Notice of the test must be published at least forty-eight hours in advance, and the test is open to the public. Id. § 129.023(b). The test is successful only if the actual results are identical to the expected results. Id. § 129.023(d). Travis County conducts these tests before each early voting period and election day.
Copies of the program codes, operator manuals, and copies or units of all other software and any other information, specifications, or documentation required by the Secretary must be kept on file with the Secretary. Id. § 122.0331(a). The Secretary also requires that DREs meet or exceed the minimum requirements established by the Federal Election Commission. 1 TEX. ADMIN. CODE § 81.61 (requiring compliance with FEC's Performance and Test Standards for Punch Card, Mark Sense, and Direct Record Electronic Voting Systems). Although DREs must provide contemporaneous printouts of "significant election events,"
The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful of DREs the Secretary has certified.
The NAACP of Austin, its president Nelson Linder, Sonia Santana (a Travis County voter), and David Van Os (a candidate for attorney general) (collectively, the voters), sued Esperanza Andrade, the Secretary of State,
The Secretary filed a plea to the jurisdiction and motion for summary judgment, asserting that the voters lacked standing to pursue their claims and that she was immune from suit. The trial court denied the plea and motion, and a divided court of appeals affirmed. 287 S.W.3d 240. We granted the petition for review
Because the voters seek only declaratory and injunctive relief, and because each voter seeks the same relief, only one plaintiff with standing is required. See Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 627 (Tex.1996).
Generally, a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmental acts.
Originally characterized as prudential,
Instead, the proper inquiry is whether the plaintiffs sue solely as citizens who insist that the government follow the law. CHEMERINSKY, CONSTITUTIONAL LAW 91. For example, the Supreme Court has held that citizens lacked standing to sue for a violation of a constitutional provision prohibiting members of Congress from serving in the executive branch. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217-27, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). It has also rejected citizen standing in a case seeking to have parts of the CIA Act declared unconstitutional because it violated the Constitution's Statement and Accounts Clause. United States v. Richardson, 418 U.S. 166, 179-80, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). We have held that a voter and citizen lacked standing to enjoin a purportedly illegal executive order signed by the mayor. Brown, 53 S.W.3d at 304. The line between a generalized grievance and a particularized harm is difficult to draw,
We recognized the principle over a century ago, when we held that a citizen could not, through litigation, challenge San Antonio's decision to build city hall on what was then a military plaza. City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, 755 (1888) (holding that "no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself"). And we have stated the general proposition broadly, applying it to voters: "No Texas court has ever recognized that a plaintiff's status as a voter, without more, confers standing to challenge the lawfulness of government acts." Brown, 53 S.W.3d at 302. Instead, "[o]ur decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large." Id. But we have also been careful to suggest that challenges to the election process may be different. Id. (noting that "[t]his Court has never recognized standing on the basis of the results—as opposed to the process—of an initiative election").
The Secretary urges a blanket rule that would ensure no voter ever has standing to challenge a voting system. We think the Secretary overreaches in that respect. The voters assert a denial of equal protection—a claim voters often have standing to bring. See Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (noting that voters have standing to bring equal protection challenges to complain of vote dilution, and observing that "[m]any of the cases have assumed rather than articulated the premise in deciding the merits of similar claims").
In Baker, the Supreme Court explained that voters had standing to challenge a state's apportionment scheme because
369 U.S. at 208, 82 S.Ct. 691 (emphasis added) (citations omitted); see also Tokaji, 73 FORDHAM L.REV. at 1752 (noting that "the use of voting machines disfavoring identifiable groups of voters, defined by place of residence, is constitutionally problematic" and noting that such claims are analogous to the "one person, one vote" cases). While equal protections claims involving the use of DREs have been largely unsuccessful,
The Secretary argues that because the voters have not shown that their votes actually were miscounted, they have not sustained the kind of concrete, particularized injury standing requires. But the voters' equal protection complaint is that the eSlate is susceptible to fraud and prone to malfunction, depriving them of the ability to determine whether their votes were counted. They assert that it is less probable that their votes will be counted than will the votes of residents of other Texas counties or absentee voters in Travis County. It is not necessary to decide whether the voters' claims will, ultimately, entitle them to relief, in order to hold that they have standing to seek it. "If such impairment does produce a legally cognizable injury, they are among those who have sustained it." Baker, 369 U.S. at 207-08, 82 S.Ct. 691. Because they assert "a plain, direct and adequate interest in maintaining the effectiveness of their votes, not merely a claim of the right, possessed by every citizen, to require that the Government be administered according to law," the voters have standing to pursue their equal protection claim. Id. (citations omitted).
The Secretary next asserts that equal protection claims rooted solely in geographical distinctions are insufficient to confer voter standing, citing our decision in Texas Department of Transportation v. City of Sunset Valley, 146 S.W.3d 637, 646-647 (Tex.2004). In that case, we held that a county resident had no standing to bring an equal protection claim on behalf of a class challenging the Department's purported failure to accord one county the same treatment other counties received. We held that state and federal equal-protection guarantees relate to "equality between persons as such, rather than between areas, and ... territorial uniformity is not a constitutional prerequisite." Id. at 646-47 (citation omitted). We noted that when the State exercises governmental powers, it necessarily draws distinctions between geographic areas, and if citizens were entitled to equal treatment every time government money was spent, almost every government program would be unconstitutional. Id. at 647. Although framed as a standing question, we ultimately held that the claims failed as a matter of law. Id.
Sunset Valley's rule applies to equal protection claims generally, but not to cases involving voting-related equal protection claims. The latter are often based precisely on disparate treatment among voters in different geographical areas. See, e.g., Dunn, 405 U.S. at 336, 92 S.Ct. 995 ("[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."); Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable."); Wesberry
The voters assert that they are forced to use the eSlate while other Travis County voters use an absentee or paper ballot. They also complain that voters in other parts of Texas are not forced to use the eSlate. Without examining the merits of the claim, this disparity gives them standing to sue for an equal protection violation. Cf. Bush v. Gore, 531 U.S. 98, 104-05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) ("Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another.").
We turn then to the merits of the voters' equal protection challenge, cognizant that the Secretary retains immunity from suit unless the voters have pleaded a viable claim. See TEX. CONST. art. I, § 3; City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex.2007) (per curiam) (holding that "`suits for injunctive relief' may be maintained against governmental entities to remedy violations of the Texas Constitution" (quoting City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.1995))); see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004).
The voters assert two equal protections claims. Broadly, they complain that voters who cast paper ballots have a greater level of protection against fraud or system malfunction than DRE voters do. The voters do not allege that DREs are less accurate—that they suffer from higher error rates or lead to more invalid ballots—than other voting systems. Instead, they complain that DREs' vulnerabilities make it more likely that votes will be manipulated or lost. More narrowly, the voters make a recount-related claim. Recounts of "regular paper ballots" are conducted manually, by a counting team composed of three individuals. TEX. ELEC.CODE §§ 214.001-.002. One person reads the ballots; the other two tally the votes. Id. § 214.002. Votes from DREs are recounted differently. A person requesting a recount of electronic voting system ballots has three choices: (1) an electronic recount using the same program as the original count; (2) if the program is defective, an electronic recount using the corrected program; or (3) a manual recount. Id. § 214.042(a). The voters assert that the paperless computerized voting systems only allow for a retabulation of the votes cast and recorded, which creates a disparity in the manual recount methodology. Voters not required to use the DRE (absentee, military, or those living in a Texas county that does not use the eSlate) are granted the right to a hand recount of votes, and the voters allege that this recount
The right to vote is fundamental, as it preserves all other rights. Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); see also Bush, 531 U.S. at 104, 121 S.Ct. 525 ("When the state legislature vests the right to vote ... in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter."). But that does not mean states cannot regulate the franchise. Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (holding that although voting is a fundamental right, "[i]t does not follow ... that the right to vote in any manner ... [is] absolute"); Dunn, 405 U.S. at 336, 92 S.Ct. 995 (noting that "the States have the power to impose voter qualifications, and to regulate access to the franchise").
Instead, the Supreme Court has explained that laws impacting the right to vote must be evaluated on a sliding scale: when the law severely restricts the right to vote, the regulation must be narrowly drawn to advance a compelling state interest. Burdick, 504 U.S. at 434, 112 S.Ct. 2059. But when a state election law provision imposes "`reasonable, nondiscriminatory restrictions'" upon voters' constitutional rights, "`the State's important regulatory interests are generally sufficient to justify' the restrictions."
So our initial determination depends on the severity of the burden on the right to vote. The United States Court of Appeals for the Ninth Circuit, one of three federal circuit courts to reject equal protection challenges to DREs, has held that the use of paperless, touchscreen voting systems does not severely restrict the right to vote. Weber v. Shelley, 347 F.3d 1101, 1106-07 (9th Cir.2003). As that court noted, DREs "bring[] about numerous positive changes (increasing voter turnout, having greater accuracy than traditional systems, being user-friendly, decreasing the number of mismarked ballots, saving money, etc.)." Id. at 1106. That court held that, under Burdick, the use of DREs was not subject to greater scrutiny simply because the system may make the possibility of some kinds of fraud more difficult to detect. Id. at 1106-07.
Id. (footnote omitted).
The Eleventh Circuit came to a similar conclusion. See Wexler v. Anderson, 452 F.3d 1226 (11 th Cir.2006). Specifically, in considering whether differing recount mechanisms for DRE votes deprived DRE voters of equal protection, the court noted that "the differences [in] procedures [were] necessary given the differences in the technologies themselves and the types of errors voters are likely to make in utilizing those technologies." Id. at 1233. DRE voters were less likely to cast ambiguous votes than were voters using, say, optical scan ballots, on which a voter might leave a stray pencil mark or circle a candidate's name rather than filling in the appropriate bubble. Id. (noting that DREs "do not record ambiguous indicia of voter intent that can later be reviewed during a manual recount"); see also Tokaji, 73 FORDHAM L.REV. at 1723 (noting that "it is not generally possible to overvote with DRE voting machines"). Moreover, the court noted that DREs had certain benefits, making voting more accessible to disabled voters and preventing some voter errors that were common with optical scan machines. Thus, Florida's regulatory interests justified the manual recount procedures and, "therefore, they do not violate equal protection." Wexler, 452 F.3d at 1233.
Adopting the reasoning of Weber and Wexler, the Georgia Supreme Court has also rejected an equal protection challenge to that state's DRE system,
We agree with the conclusions reached by those courts. DREs are not perfect. No voting system is. We cannot say that DREs impose severe restrictions on voters, particularly in light of the significant benefits such machines offer. See, e.g., Weber, 347 F.3d at 1107; see also Tokaji, 73 FORDHAM L.REV. at 1741, 1754 (noting that "DREs can reduce uncounted votes and virtually eliminate the `racial gap' that tends to exist with other types of equipment," "have the potential to expand access for people with disabilities and for voters with limited English proficiency," and "tend[] to considerably reduce the number of uncounted votes"). As the Wexler court noted, different recount methodologies are necessary for DREs because ambiguous votes—often scrutinized during recounts—are virtually eliminated. A DRE with a voter-verified paper audit trail may provide more security; it may not.
The voters' standing to pursue an equal protection claim does not translate into standing for their remaining claims. Instead, "a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citations and quotations omitted). In additional to the equal protection clause, the voters complain that the Secretary has violated two other constitutional provisions. The first, article VI, section 4, states:
TEX. CONST. art. VI, § 4.
This provision has four requirements: (1) votes shall be by secret ballot, (2) ballots shall be numbered, (3) the Legislature shall enact such other regulations as necessary to detect and punish fraud and preserve the purity of the ballot box, and (4) the Legislature may provide, by law, for the registration of voters in all cities. Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 8 (1939).
First, they assert that the eSlate deprives them of a secret ballot. These allegations differ from the general thrust of the voters' claims, in that they do not complain specifically about the lack of a contemporaneous paper record of a vote cast. Instead, although the voters do not dispute that the eSlate permits them to cast secret ballots, they argue that the device is vulnerable to hackers, compromising vote secrecy. They also complain that the eSlate's audio output, available for disabled voters, can be overheard at a significant distance using only a shortwave radio.
Second, the voters allege that the eSlate's lack of a paper ballot violates the constitutional requirement that ballots be numbered. Although the eSlate numbers ballots, the voters contend that failing to require a paper ballot undermines the framers' intent in drafting the numbering requirement—a requirement they claim was intended to secure the integrity of the election process.
Assuming, as we must, that these allegations are true, they amount only to a generalized grievance shared in substantially equal measure by all or a large class of citizens. See, e.g., Landes v. Tartaglione, No. 04-3163, 2004 WL 2415074, *1-2, 2004 U.S. Dist. LEXIS 22458, *4-5 (E.D.Pa. Oct. 28, 2004) (holding that voter lacked standing to complain of electronic voting machines that might malfunction or be tampered with), aff'd, 153 Fed.Appx. 131 (3d Cir.2005), cert. denied, 547 U.S. 1040, 126 S.Ct. 1622, 164 L.Ed.2d 334 (2006). The voters' complaint that the lack of a contemporaneous paper record violates the spirit of the constitution is the kind of "undifferentiated, generalized grievance" about the conduct of government that courts cannot adjudicate. Lance, 549 U.S. at 442, 127 S.Ct. 1194. The voters' secret ballot allegations involve only hypothetical harm, not the concrete, particularized injury standing requires. See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex.2008).
All voting systems are subject to criminal manipulation, but there is no evidence or allegation that the eSlate has ever been manipulated in any Travis County election. Nor is there any proof that a Travis County disabled voter was deprived of the right to a secret ballot. In fact, the evidence is to the contrary: Travis County adopted the eSlate in part to comply with federal regulations aimed at facilitating the participation of the disabled in the voting process.
Finally, the voters assert that the lack of a contemporaneous paper record neither provides a means of detecting and punishing fraud, nor preserves the purity of the ballot box. But we have held that the "purity of the ballot box" provision requires only that the Legislature pass laws as necessary to deter fraud and protect ballot purity: "This constitutional provision is addressed to the sound discretion of the Legislature," and "[i]t is not for the courts to attempt to direct what laws the Legislature shall enact to comply with it." Wood, 126 S.W.2d at 9. The voters do not complain that the Legislature has failed to do so; to the contrary, they admit that it has. In the trial court, they alleged "[p]laintiffs do not find fault with the Code, or request that the Court rewrite it. The issue here is with the Secretary's application of the discretion provided him [sic] by the legislature." Without more, the voters have not alleged a violation of article VI, section 4.
Article VI, section 2(c) provides that "suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence in elections from power, bribery, tumult, or other improper practice." TEX. CONST. art. VI, § 2(c).
The voters' 2(c) claim is difficult to discern. As alleged in their petition, the claim is derivative: they assert that the Secretary's alleged failure to comply with article VI, section 4 violates article VI, section 2(c) as well. In response to the Secretary's jurisdictional plea and motion for summary judgment, the voters mention 2(c) only in passing, and then only to state that "[e]lections should be absolutely free from influences of power and tumult." They assert that the Secretary's certification of easily "hacked" machines destabilizes citizen confidence and weakens democracy.
Assuming all that is true, section 2(c) requires only that the Legislature pass laws to eliminate improper election practices. Cf. Wood, 126 S.W.2d at 9. The voters do not dispute that the Legislature has done so. Their complaint is solely with the Secretary's certification of the DRE. Whatever the validity of that argument, it does not state a claim for a violation of section 2(c).
The Secretary then makes the curious argument that if part of what the voters allege is true—that she does not have access
In addition to their equal protection recount claim, the voters allege that the Secretary's certification of the eSlate deprives them of their statutory right to a recount, which the Election Code defines as "the process conducted under this title for verifying the vote count in an election." TEX. ELEC.CODE § 211.002. Additionally, although their live pleading is silent on the point, the voters assert on appeal that the Secretary's certification of the eSlate violates the requirement that voting systems be capable of providing records from which the system's operation may be audited, and, therefore, the Secretary acted outside her authority in certifying the system. TEX. ELEC.CODE §§ 122.001, .032(a). Finally, although the voters did not plead it, the court of appeals noted that the voters' evidence supported a claim that the eSlate does not comply with statutory requirements that the system operate "safely" and "accurately" and that it be "safe from fraudulent or unauthorized manipulation." TEX. ELEC.CODE § 122.001(a)(3), (4); 287 S.W.3d at 253 n. 10.
The voters argue that Election Code section 273.081, which authorizes injunctive relief for a person "who is being harmed or is in danger of being harmed by a violation or threatened violation of this code," gives them standing to pursue these claims. TEX. ELEC.CODE § 273.081. That provision, however, does not create standing—it merely authorizes injunctive relief. As we have noted, statutes like this, which permit "`persons aggrieved,' `persons adversely affected,' [or] `any party in interest,'" to sue, still require that the plaintiff show how he has been injured or damaged other than as a member of the general public. Scott v. Bd. of Adjustment, 405 S.W.2d 55, 56 (Tex.1966).
Here, the voters have made no showing that the Secretary's certification harmed them other than as members of the general public. Accordingly, for much the same reason their article VI claims are barred, the voters lack standing to pursue their Election Code complaints. Those allegations involve only generalized grievances about the lawfulness of government acts. See, e.g., Favorito, 684 S.E.2d at 263 (holding that voters' arguments regarding accuracy of recounts on DREs were "merely hypothetical and cannot serve as a basis
The voters raise legitimate concerns about system integrity and vulnerability. But these are policy disputes more appropriately resolved in the give-and-take of politics. Perhaps the Secretary will decide, as California has, to de-certify certain DREs.
Tokaji, 73 FORDHAM L.REV. at 1780-81; see also id. at 1736 (noting that "many election officials and some civil rights advocates have opposed a contemporaneous paper record requirement, arguing that it is unnecessary, burdensome, and likely to discourage adoption of accessible voting technology").