DOE v. TEXAS STATE CONFERENCE OF THE NAACP (2026)

OPINION

During the 2020 election cycle, the COVID-19 pandemic hit. Texas Governor Greg Abbott issued a proclamation declaring a disaster in all 254 Texas counties.¹ Texas state and local officials implemented measures to administer the 2020 general election during the public health crisis. The Governor extended the early-voting period and allowed counties to accept hand-delivery of mail-in ballots before election day.² The Texas Secretary of State issued election advisories to provide administrative guidance to local officials and assist with safely conducting elections.³ Local officials in two Texas counties, including Harris County, introduced initiatives that included drive-through and overnight voting, returning mail-in ballots to drop boxes, and sending mail-in-ballot applications directly to all voters over age 65.

In the wake of the 2020 election, the Texas Legislature enacted the Election Integrity Protection Act of 2021 (“Senate Bill 1” or “S.B. 1”).⁴ S.B. 1 amends the Texas Election Code ⁵ to install provisions ensuring uniformity and consistency in the conduct of elections throughout the State going forward. It was signed by Governor Abbott on September 7, 2021, and became effective December 2, 2021.⁶

On the same day that S.B. 1 was signed by Governor Abbott, two organizations and five Texas residents ⁷ (collectively, “appellees”) filed a pre-enforcement action under the Uniform Declaratory Judgments Act against several Texas state officials ⁸ —challenging the constitutionality of certain S.B. 1 amendments to the Election Code, as to them and their members, under the Texas Constitution.⁹ Appellees sought a judgment declaring the amendments unconstitutional and enjoining their enforcement.

The state officials moved to dismiss appellees' claims under Rule 91a on the ground that the trial court lacked subject matter jurisdiction to order the requested relief.¹⁰ They maintained that appellees lacked standing and failed to establish a waiver of immunity. The trial court denied the motion and the state officials appealed.¹¹

The state officials raised two issues on appeal. They argue that their 91a motion should have been granted because (1) appellees lack standing to assert their claims, and (2) appellees failed to allege facts invoking a valid waiver of the state officials' immunity.

During this appeal, appellees informed the Court that they are no longer maintaining their claims against the Deputy Secretary of State. Appellees also conceded that, in light of State v Stephens, 663 S.W.3d 45, (Tex. Crim. App. 2021) (“[N]one of the Attorney General's enumerated duties concern criminal or electoral matters”), “their claims are no longer traceable to or redressable by the Attorney General.” Accordingly, the only state official against whom the appellees are asserting claims for purposes of this appeal is the Secretary of State.

In this context, we agree that the appellees lack standing to assert their claims. We therefore reverse the trial court's order for lack of jurisdiction and render judgment dismissing appellees' claims.

Background

In their petition, appellees challenged S.B. 1's amendments and additions to sections of the Election Code governing poll watchers, voter assistance, solicitation and distribution of applications to vote by mail, mail-in voting identification-match requirements, and voter-access initiatives—such as drive-through and overnight voting and returning mail-in ballots to drop boxes—which they alleged “target[ed] the very methods of voting that were used disproportionately by minority voters” in the 2020 election.

Poll Watchers

Stated generally here and discussed in detail in the analysis below, all appellees challenged S.B. 1's amendments governing poll watchers. Some alleged that these provisions violate their constitutional right to vote and others asserted a violation of due process.¹²

Texas State Conference of the NAACP (“NAACP”) is a subsidiary of a national non-profit, non-partisan organization. Its stated purpose includes “ensur[ing] the political, educational, social, and economic equality of all persons” and “removing all barriers of racial discrimination through democratic processes.” It alleged that its members have historically experienced intimidation at the polls by poll watchers—hovering close to voters, talking to or directing election clerks, and challenging voter eligibility. NAACP alleged that “the powers given to partisan poll watchers by S.B. 1 will allow” them to increase such tactics.

Common Cause Texas (“CC Texas”) is a “grassroots, democracy-focused, non-profit organization.” Its stated purpose is to “promote equal rights” and “ensure free, fair, and accessible elections in Texas.” It also alleged that its members have experienced harassment and intimidation by poll watchers. It is concerned that the S.B. 1 amendments granting poll watchers free movement throughout polling places will “dissuade many of [its] members—particularly young voters, Black voters, Hispanic voters, Asian voters, disabled and elderly voters, limited-English speaking voters, and newly naturalized American citizens—from voting at the polls altogether.”

NAACP and CC Texas (collectively, the “organizations”) alleged that the S.B. 1 amendments “increase the likelihood that partisan watchers will engage in conduct that will make voters, particularly voters of color, feel uncomfortable or intimidated, or otherwise deter them from voting.” And these provisions “severely limit[ ] the power of presiding judges to remove poll watchers for misconduct other than for a violation of the Penal Code,” unless an election judge or clerk witnesses the violation. They asserted that these provisions “will deter election officials from taking action” and that this “significantly burdens” their members' right to vote.

Hyun Ja Norman, a Harris County registered voter and voting assistant volunteer, alleged that she “will not be able to carry out her work safely” because the poll-watcher provisions expand poll watchers' rights to move freely within the polling place. She “fears that her community members will no longer vote at all and will choose to stay at home instead.”

Danyahel Norris, a Harris County voter and member of the Houston Chapter of the NAACP, alleged that he “believes” that S.B. 1's amendments governing poll watchers will “impact his ability to vote peacefully, free of any disturbance, encumbrance, or potential embarrassment.”

Freddy Blanco, a Harris County election judge and election clerk, alleged that the amendments governing poll watchers are “vague.” He is concerned that they will “subject him and other election judges to civil penalties, including loss of employment and criminal sanctions for obstructing poll watchers.” He “believes” that these provisions will “prevent his ability to do his job—including his work to preserve the peace within the polling place, allow as many eligible voters as possible to cast ballots, and support his clerks.”

Mary Flood Nugent, a Harris County election judge, also alleged that the amendments governing poll watchers are “vague.” She “fears” that the complained-of provisions will “completely change the culture” of polling places to “hostile, lawless places.”

Priscilla Bloomquist, a Harris County election judge, also alleged that the poll-watcher provisions are “vague” with respect to denying watchers “free movement” and taking “any action” against them. She alleged that S.B. 1 added superfluous, confusing language that “will prevent her from being able to control the polling place” and keep it safe.

Voter Assistance

The organizations and Norman challenged S.B. 1's amendments governing voter assistance. The organizations argued that these provisions violate their members' constitutional right to vote.¹³ Norman argued that the amendments governing voter assistance violate her constitutional right of free speech, expression, and association.¹⁴

NAACP alleged that many of its members require assistance with the voting process because of disabilities or language barriers. It is concerned that these provisions “make it harder for voter assistants to help others” and that its core programs will suffer because some members will be unwilling to help others. This will ultimately reduce the ability of its members to receive the help they need, and NAACP will have to prepare new voter training and expend resources revising its programs.

CC Texas alleged that some of its members have physical disabilities or require assistance with reading the English language. It also connects voters to other organizations that provide free transportation to the polls for disabled voters who need to vote curbside. It is concerned that the S.B. 1 amendments requiring voter assistants to provide detailed information under oath will deter them from helping voters and that the amendments will make providing services “more cumbersome.” CC Texas expects that it will have to devote more time and resources away from its current initiatives to educate its membership and the broader public about these provisions.

The organizations collectively complained that the S.B. 1 amendments require a person transporting or assisting curbside voters to provide identification information and “swear, subject to the threat of perjury” that the person assisting is not receiving a benefit and that everyone they are assisting has represented that they are eligible for such assistance. In addition, the amendments require assistants to take a longer oath than under current law and swear under penalty of perjury that they will not “pressure” a voter into choosing them to provide assistance. The organizations alleged that such requirements will deter people from providing assistance, hamper voters access to help, and significantly burden their members' right to vote. In addition, the requirements will burden the organizations with having to expend resources to educate and aid members and the public.

Norman is a Harris County registered voter who provides in-person language assistance to Korean American voters at the polls. She waits outside the polling place and speaks to Korean American voters to inform them that she speaks Korean and that they are eligible for her assistance if they do not speak or understand English. When a voter requests her assistance, Norman provides her identification information at the polling place. She then accompanies the voter from check-in through casting a ballot. She alleged that the oath, as amended, will subject her to punishment just by engaging in conversations to convince Korean American voters to accept her help.

Mail-in Voting

The organizations alleged that the S.B. 1 amendments to certain Election Code provisions governing the solicitation and distribution of applications to vote by mail and mail-in voting identification-match requirements violate their members' constitutional right to vote.¹⁵

With respect to solicitation and distribution of applications to vote by mail, the organizations alleged that they rely on community gatherings to educate their members on the right to vote by mail. And CC Texas “has planned to work with officials to solicit vote-by-mail applications from eligible voters.” They alleged that, “[b]y prohibiting election officials from ‘soliciting’ a person to complete a vote by mail application,” the amendments “chill any public engagement by election officials with [the organizations], significantly burdening the right to vote” of their members.

With respect to mail-in voting identification-match requirements, the organizations alleged that the amendments “create[ ] additional barriers to voting by mail by introducing a new error prone matching process” that requires election officials to reject any application or ballot if the identification information on the application or ballot does not match the information in the statewide voter registration database. And many members do not have computer or internet access that would enable them to timely cure any identification issues using an online tool.

Equal Protection

Lastly, appellees alleged that, whether viewed individually or collectively, these amendments to the Election Code by S.B. 1, although neutral on their face, are “specifically aimed at curtailing methods of voting used by Black, Hispanic, and Asian voters.” They alleged that “S.B. 1 will make it more difficult for these voters to vote by mail, to vote early, and to deliver their ballots.”

Standing

State employees acting in their official capacities generally have sovereign immunity from suit. See Paxton v. Simmons, 640 S.W.3d 588, 599 (Tex. App.—Dallas 2022, no pet.). However, for claims challenging the validity of statutes, “the Declaratory Judgment Act requires that the relevant governmental entities [and officials] be made parties, and thereby waives immunity.” Patel v. Tex. Dep't of Licensing & Regul., 469 S.W.3d 69, 76–77 (Tex. 2015) (quoting City of El Paso, v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (citing Tex. Civ. Prac. & Rem. Code § 37.006(b))). In this situation, a plaintiff must still demonstrate standing to assert the claim. See Paxton, 640 S.W.3d at 599–600.

As detailed above, the only state official against whom the appellees are asserting claims for purposes of this appeal is the Secretary of State. Thus, as a threshold matter,¹⁶ we must address whether appellees have standing to assert their claims against the Secretary of State.

Standard of Review and Applicable Legal Principles

Standing is “implicit in the concept of subject-matter jurisdiction.” In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020). It is a fundamental, threshold requirement ensuring that only parties with a direct, concrete, and personal stake in a dispute can bring and maintain a lawsuit. Standing prevents courts from issuing advisory opinions on abstract questions. And, equally important, standing protects the separation of powers by preventing the judiciary from overstepping into the legislative or executive branches and ruling on political or hypothetical matters of general public grievance. See id.

Standing is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–45 (Tex. 1993). We review standing under the same standard by which we review subject matter jurisdiction generally. Id. at 446. Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

In determining whether plaintiffs have met their burden of alleging facts that affirmatively establish the trial court's subject matter jurisdiction, we look to the allegations in their pleadings and construe them in their favor. Id. “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency,” and the plaintiffs should be afforded the opportunity to amend. Id. at 226–27. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then the “suit should be dismissed.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012).

“In Texas, the standing doctrine requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012) (noting that Texas test parallels federal test for Article III standing).¹⁷ Standing thus has three requirements that must be satisfied:

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ․ trace[able] to the challenged action of the defendant, and not ․ th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

Id. at 154–55 (emphasis added) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

“Standing to assert a constitutional violation [also] depends on whether the claimant asserts a particularized, concrete injury.” Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 774 (Tex. 2005). To establish standing to challenge the constitutionality of a statute, “a plaintiff must [both] suffer some actual or threatened restriction under the statute” and “contend that the statute unconstitutionally restricts the plaintiff's rights.” Patel, 469 S.W.3d at 77 (internal quotations omitted).

“[A]n association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681, 690–91 (Tex. 2022). “In other words, associational standing requires establishing everything that an individual plaintiff would have to establish, plus satisfying additional burdens that apply only to associational standing.” Id.; see Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 (“irreducible constitutional minimum” of standing requires that plaintiff have suffered an “injury in fact”).

“Generally, courts must analyze the standing of each individual plaintiff to bring each individual claim he or she alleges.” Patel, 469 S.W.3d at 77 (citing Heckman, 369 S.W.3d at 152 (“[T]he court must assess standing plaintiff by plaintiff, claim by claim.”)). “[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Heckman, 369 S.W.3d at 153 (“[S]tanding is not dispensed in gross.”). A plaintiff's lack of standing to bring some, but not all, of his claims deprives the court of jurisdiction over those discrete claims. Id. at 150. If the plaintiff lacks standing to bring all of his claims, the court must dismiss the whole action for want of jurisdiction. Id. at 150–51.

However, “where there are multiple plaintiffs in a case, who seek injunctive or declaratory relief (or both), who sue individually, and who all seek the same relief,” the court “need not analyze the standing of more than one plaintiff—so long as that plaintiff has standing to pursue as much or more relief than any of the other plaintiffs.” Patel, 469 S.W.3d at 77 (quoting Heckman, 369 S.W.3d at 152 n.64). If one plaintiff prevails on the merits, the same prospective relief will issue regardless of the standing of the other plaintiffs. Id.; see Andrade v. NAACP of Austin, 345 S.W.3d 1, 6 (Tex. 2011) (“Because the voters seek only declaratory and injunctive relief, and because each voter seeks the same relief, only one plaintiff with standing is required.”).

Injury in Fact

Here, we consider the standing of two associations (NAACP and CC Texas) and five Texas individuals (Norman, Norris, Nugent, Blanco, and Bloomquist) to bring their claims against the one remaining defendant―the Secretary of State.

We examine the allegations in the pleadings, construe them in appellees' favor, and determine whether they alleged facts affirmatively demonstrating the trial court's jurisdiction to hear the case. See Heckman, 369 S.W.3d at 153, 156; see also Andrade, 345 S.W.3d at 6. We assess standing “plaintiff by plaintiff, claim by claim.” Heckman, 369 S.W.3d at 152. However, because appellees seek only declaratory and injunctive relief, and each seeks the same relief, only one appellee with standing to assert a particular claim is necessary—“so long as that [appellee] has standing to pursue as much or more relief than any of the other [appellees].” See Andrade, 345 S.W.3d at 6. Our threshold inquiry “in no way depends on the merits of the [appellees'] contention[s].” Id. at 7.

The Secretary of State argues that appellees' factual allegations in their petition “reveal[ ] no cognizable injury in fact.” Further, their pleadings affirmatively negate the existence of jurisdiction. See Rusk State Hosp., 392 S.W.3d at 96. Accordingly, their “suit should be dismissed.” See id.

A. Poll Watchers

In their petition, NAACP, CC Texas, Norris, Norman, Blanco, Nugent, and Bloomquist challenge S.B. 1's additions and amendments to certain Election Code ¹⁸ provisions governing poll watchers. NAACP, CC Texas, Norman, and Norris argue that these provisions violate the right to vote. See Tex. Const. art. I, § 3.¹⁹ Blanco, Nugent, and Bloomquist argue that these provisions violate their due process rights. See Tex. Const. art. I, § 19.²⁰

The purpose of Chapter 33 of the Election Code is “to preserve the integrity of the ballot box in accordance with Section 4, Article VI, Texas Constitution, by providing for the appointment of watchers.” Tex. Elec. Code § 33.0015. A poll watcher is a person appointed “to observe the conduct of an election on behalf of a candidate, a political party, or the proponents or opponents of a measure.” See id. § 33.001.

It is the legislature's stated intent that watchers be “allowed to observe and report on irregularities in the conduct of any election.” Id. § 33.0015. However, a poll watcher “may not interfere in the orderly conduct of an election.” Id. (a watcher “shall observe without obstructing the conduct of an election and call to the attention of an election officer any observed or suspected irregularity or violation of law in the conduct of the election”).

A poll watcher “may not be present at the voting station when a voter is preparing the voter's ballot or is being assisted by a person of the voter's choice.” Id. § 33.057(b). Otherwise, the watcher is entitled to observe “any activity conducted at the location at which the watcher is serving” and “may not be denied free movement where election activity is occurring within the location at which the watcher is serving.” Id. § 33.056. “A watcher is entitled to sit or stand near enough to see and hear the election officers conducting the observed activity, except as otherwise prohibited by this chapter.” Id.

While on duty, a poll watcher may not converse with an election officer regarding the election, except to call attention to an irregularity or violation of law, converse with a voter, or communicate in any manner with a voter regarding the election. Id. § 33.058.

1. S.B. 1 Additions and Amendments

S.B. 1 section 4.06 added Election Code section 33.051(g), which states: “An election officer commits an offense if the officer intentionally or knowingly refuses to accept a watcher for service when acceptance of the watcher is required by this section. An offense under this subsection is a Class A misdemeanor.” Tex. Elec. Code § 33.051(g).

S.B. 1 section 4.01 added Election Code section 32.075(g), which states: “A presiding judge may not have a watcher duly accepted for service ․, removed from the polling place for violating a provision of this code or any other provision of law relating to the conduct of elections, other than a violation of the Penal Code, unless the violation was observed by an election judge or clerk.” Id. § 33.075(g).²¹

S.B. 1 section 4.07 added Election Code sections 33.056(e) and (f): “Except as provided by [section 33.057(b) above], a watcher may not be denied free movement where election activity is occurring within the location at which the watcher is serving,” and “a watcher who is entitled to ‘observe’ an election activity is entitled to sit or stand near enough to see and hear the activity.” Id. § 33.056(e)-(f) (emphasis added).

S.B.1 section 4.09 amended Election Code section 33.061(a) as follows:

A person commits an offense if ․ [he] knowingly prevents a watcher from observing an activity or procedure the person knows the watcher is entitled to observe, including by taking any action to obstruct the view of the watcher or distance the watcher from the activity or procedure to be observed in a manner that would make observation not reasonably effective.

Id. § 33.061(a) (emphasis added).

S.B. 1 section 6.01 added Election Code section 64.009(e) as follows: “Except as provided by Section 33.057, a poll watcher is entitled to observe any activity conducted under this section.” Id. § 64.009(e) (emphasis added)

2. Allegations in the Petition: NAACP

NAACP alleged that “the powers given to partisan poll watchers by S.B. 1 will allow” them to increase intimidation tactics. NAACP alleged that it is injured because it will “have to commit significant time and resources to develop and run know-your-rights trainings for the public and for its membership.”

NAACP, collectively with CC Texas, alleged that the S.B. 1 amendments “individually and together” impose a “significant and substantial burden on the right to vote” of their members. NAACP alleged that they “increase the likelihood that partisan watchers will engage in conduct that will make voters, particularly voters of color, feel uncomfortable or intimidated, or otherwise deter them from voting.” And these provisions “severely limit[ ] the power of presiding judges to remove poll watchers for misconduct other than for a violation of the Penal Code,” unless an election judge or clerk witnesses the violation. NAACP asserted that these provisions “will deter election officials from taking action to protect voters” and that they “significantly burden[ ] the right to vote of Organizational Plaintiffs' members and Plaintiff Norris.”

NAACP's allegations—that the amendments might “increase the likelihood that partisan watchers will engage in conduct that will make voters, particularly voters of color, feel uncomfortable or intimidated, or otherwise deter them from voting” and “will deter election officials from taking action to protect voters”—are speculative and hypothetical. See Heckman, 369 S.W.3d at 154–55 (emphasis added) (plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’ ”).

NAACP's general allegation of injury based on having to “commit significant time and resources to develop and run know-your-rights trainings for the public and for its membership,” does not allege particularized harm.²² See id.

3. Allegations in the Petition: Norris

NAACP identified Norris, a Harris County voter and member of NAACP. See Abbott, 647 S.W.3d at 692–93. Norris alleged that he is “extremely concerned about the provisions of S.B.1 that expand the rights of poll watchers at polling places and limit the power of election officials to protect voters from the disruptive, uncomfortable, and intimidating behavior of watchers.” He “believes” that these provisions will “impact his ability to vote peacefully, free of any disturbance, encumbrance, or potential embarrassment.” He finds these provisions “intimidating both for himself and his wife, and for other Black voters.”

Norris's claimed injury is based on his “belie[fs]” and conjecture. Because he does not allege a concrete and particularized injury, or assert that such injury is imminent, he has not established standing with respect to this claim. See Heckman, 369 S.W.3d at 154. Norris's complaint about the effect of these provisions on his wife and “other Black voters” is insufficient to demonstrate that he has suffered injury. See id. at 155 (injury-in-fact analysis requires that plaintiff suffer “personal” injury).

4. Allegations in the Petition: CC Texas

CC Texas alleged that the S.B. 1 amendments granting poll watchers free movement throughout polling places will “dissuade many of [its] members—particularly young voters, Black voters, Hispanic voters, Asian voters, disabled and elderly voters, limited-English speaking voters, and newly naturalized American citizens—from voting at the polls altogether.”

CC Texas again did not identify any specific individual member that is injured. The lack of specificity regarding any identified member—who is “then subject to scrutiny to ensure that they would in fact have standing on their own”—is insufficient to meet the first prong of associational standing. See Abbott, 647 S.W.3d at 690–91 (association has standing to sue on behalf of its members when its members would otherwise have standing to sue in their own right).

Further, CC Texas's joint allegations with NAACP—that the amendments might “increase the likelihood that partisan watchers will engage in conduct that will make voters, particularly voters of color, feel uncomfortable or intimidated, or otherwise deter them from voting”—are speculative and hypothetical. See Heckman, 369 S.W.3d at 154–55 (emphasis added).

And CC Texas's general allegation of injury based on having to “make expenditures to aid and educate its members and the public that [it] otherwise would not have to make” does not allege particularized harm. See id.

5. Allegations in the Petition: Norman

Norman alleged that, based on S.B.1's “expansion of poll watchers' rights” to move freely within the polling place, she “will not be able to carry out her work safely,” and she “fears that her community members will no longer vote at all and will choose to stay at home instead.”

Norman's allegation that she will not be able to carry out her work “safely” is generalized and conjectural and fails to allege a concrete and particularized injury. See id. at 155. To the extent she complains of the effects of the provisions on “community members,” she fails to plead facts demonstrating that she has suffered injury. See id. (plaintiff “must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury”).

6. Allegations in the Petition: Blanco

Blanco, a Harris County election judge and election clerk, complained that S.B. 1 sections 4.07(e) (denying “free movement”), 4.09 (taking “any action”), and 6.01 (authorizing watchers to observe “any activity” during curbside voting) are “vague.” He is “unsure how he is expected to follow” S.B. 1's provisions, and he “believes that other Sections of S.B. 1 suffer from similar infirmities.” He is “concerned with the provisions of S.B. 1 that will subject him and other election judges to civil penalties, including loss of employment and criminal sanctions for obstructing poll watchers.” He “believes” that these provisions will “prevent his ability to do his job” and “worrie[s] about the potential for criminal penalty or loss of his job.”

With respect to Blanco's perceived threat of injury that has not yet come to pass, the “threatened injury must be certainly impending to constitute injury in fact.” See In re Abbott, 601 S.W.3d at 812. His allegation of concern and worry about the potential of future injury is not sufficient. See id. (“[M]ere allegations of possible future injury are not sufficient.”)

In addition, Blanco's allegation of injury based on his “belie[fs]” and general uncertainty about S.B. 1's provisions overall is conjectural and does not allege a concrete and particularized injury. See Heckman, 369 S.W.3d at 154. Further, his allegations regarding the effects of the provisions on “other election judges” are insufficient to demonstrate that he has suffered injury. See id. at 155.

7. Allegations in the Petition: Nugent

Nugent, a Harris County election judge, also complained that the S.B. 1 provisions governing poll watchers are “vague.” She interprets “free movement” as a watcher's ability to observe within the polling place without coming too close to voters or making them feel uncomfortable. She “does not know” whether asking a poll watcher to sit instead of stand constitutes “an action” that denies them “free movement.” She “fears” that the complained-of provisions will “completely change the culture” of polling places to “hostile, lawless places.”

Nugent's “fear[ ]” of a change in the “culture” of polling places is generalized and conjectural and fails to allege a concrete and particularized injury. See id.

8. Allegations in the Petition: Bloomquist

Bloomquist, a Harris County election judge, also alleged that the complained-of provisions are “vague” with respect to “denying watchers free movement” and taking “any action against watchers.” She complained that these portions “do not help clarify the current Election Code and are unnecessary,” “given that the current Election Code already provides adequate guidance and appropriate discretion to election judges.” She alleged that the new language is “confusing” and that she is

concerned that S.B.1's vague language will prevent her and other judges from being able to control the polling place and provide a safe and comfortable environment for voting. She thinks that S.B.1 will empower poll watchers to direct her staff and make it harder for them to serve voters. She is also concerned that younger or newer election judges might feel intimidated by emboldened watchers who challenge their authority and be unable to carry out their duties for fear of civil sanctions, including potential job termination, and criminal penalties.

To the extent that Bloomquist alleges that S.B. 1 added superfluous language, she does not allege any injury. Her allegations that the amended language is “confusing” and “will prevent her from being able to control the polling place” and make it “safe” and “comfortable,” and what she “thinks” may occur, involve speculative and hypothetical harm, not the concrete, particularized injury standing requires. See Andrade, 345 S.W.3d at 15.

Further, Bloomquist's allegation about the effects of the provisions on “younger or newer election judges” is insufficient to demonstrate that she has suffered an injury. See Heckman, 369 S.W.3d at 155.

We conclude that NAACP, CC Texas, Norris, Norman, Blanco, Nugent, and Bloomquist have not established standing to challenge S.B. 1's additions and amendments to the Election Code ²³ provisions governing poll watchers.

B. Voter Assistance

In their petition, NAACP, CC Texas, and Norman challenge S.B. 1's amendments and additions to the sections of the Election Code governing voter assistance.²⁴ NAACP and CC Texas allege that these provisions violate their members' constitutional right to vote. See Tex. Const. art. I, § 3.²⁵ Norman alleges that these provisions violate her constitutional right to freedom of speech. See Tex. Const. art. I, § 8.²⁶

Generally, a voter is eligible to receive assistance in marking or reading a ballot if the voter cannot prepare or read the ballot because of a physical disability that renders the voter unable to write or see, or because of an inability to read the language in which the ballot is written. Tex. Elec. Code § 64.031. On a voter's request, the voter may be assisted by any person selected by the voter other than the voter's employer, an agent thereof, or an officer or agent of a labor union to which the voter belongs. Id. § 64.032.

1. S.B. 1 Additions and Amendments

S.B.1 section 6.03 added Election Code section 64.0322, which states that a person, other than an election officer, who assists a voter is required to complete a form stating her name and address, relationship to the voter, and whether the assistant received or accepted any form of compensation or other benefit from a candidate, campaign, or political committee. Tex. Elec. Code § 64.0322.

S.B.1 section 6.04 amended the oath in section 64.034 of the Election Code. Section 64.034, as amended, requires an assistant to complete an oath, administered by an election officer at the polling place, as follows:

I swear (or affirm) under penalty of perjury that the voter I am assisting represented to me they are eligible to receive assistance; I will not suggest, by word, sign, or gesture, how the voter should vote; I will confine my assistance to reading the ballot to the voter, directing the voter to read the ballot, marking the voter's ballot, or directing the voter to mark the ballot; I will prepare the voter's ballot as the voter directs; I did not pressure or coerce the voter into choosing me to provide assistance; I am not the voter's employer, an agent of the voter's employer, or an officer or agent of a labor union to which the voter belongs; I will not communicate information about how the voter has voted to another person; and I understand that if assistance is provided to a voter who is not eligible for assistance, the voter's ballot may not be counted.

Id. § 64.034.

S.B. 1 section 6.05 amended section 86.010(e) of the Election Code. Subsection (e) requires that a person assisting with mail-in voting must enter on the carrier envelope her relationship to the voter and whether she “received or accepted any form of compensation or other benefit.” Id. § 86.010(e). Unless the assistant is related to or living with the voter, an assistant who knowingly fails to comply commits a state jail felony. See id. § 86.010(f)–(i).

S.B. 1 section 6.01 added subsection (f) to Election Code section 64.009, which governs curbside voting. Subsection (f) requires a person who assists seven or more voters voting under this section by providing the voters with transportation to the polling place must complete and sign a form, provided by an election officer, that contains the person's name and address and whether the person is providing assistance solely under this section or under both this section and Subchapter B. Id. § 64.009(f); see also id. § 64.009(f-1) (subsection (f) does not apply if assistant is related to each voter, within certain parameters).

2. Allegations in the Petition: NAACP

NAACP alleged that many of its members require assistance with the voting process because of disabilities or language barriers. It is concerned that these provisions “make it harder for voter assistants to help others” and that its core programs will suffer because some members will be unwilling to help others. This will ultimately reduce the ability of its members to receive the help they need, and NAACP will have to prepare new voter training and expend resources revising its programs.

NAACP, collectively with CC Texas, alleged that a person transporting or assisting curbside voters is required to provide identification information and “swear, subject to the threat of perjury, that the person is not receiving any ‘benefit’ for providing such assistance and that persons being transported and/or assisted have represented that they are eligible for such assistance.” In addition, it complained that the amendments require assistants to take a longer oath than under current law and swear under penalty of perjury that they will not “pressure” a voter into choosing them to provide assistance. It alleged that such requirements deter “people” from providing assistance, “impermissibly burdens voters right to vote,” and “significantly burden[ ] the right to vote of Organizational Plaintiffs' members who are eligible to receive assistance.” Further, it is burdened with having to expend resources to educate and aid “members and the public.”

With respect to its challenge to the oath provisions, NAACP fails to differentiate its members from those of CC Texas in the collective allegations or to otherwise identify any member that is affected. “[T]o establish associational standing, general references to members are usually insufficient.” Abbott, 647 S.W.3d at 692–93. “The mere likelihood that some member of an association would have individual standing has never been enough.” Id. at 693. “These requirements may seem technical, but they are fundamental.” Id. The lack of specificity regarding any identified member—who is “then subject to scrutiny to ensure that they would in fact have standing on their own”—is insufficient to meet the first prong of associational standing. Id. at 690–91 (association has standing to sue on behalf of its members when its members would otherwise have standing to sue in their own right).

Further, to the extent that NAACP complained about the effect of these provisions on “people,” “voters,” and the “public,” it failed to plead facts demonstrating a concrete and particularized injury. See Heckman, 369 S.W.3d at 155 (alleging injury to “public at large” is insufficient).

We note that nothing in section 64.009, governing persons transporting or assisting curbside voters, requires an oath or requires that the assistant “swear, subject to the threat of perjury, that the person is not receiving any ‘benefit.’ ”

NAACP's general complaint that these amendments will burden it with having to expend resources to educate and aid “members and the public” is speculative and does not allege particularized harm. See id.

We conclude that NAACP has not established standing to challenge the complained-of voter assistance provisions. See id. at 154.

3. Allegations in the Petition: CC Texas

CC Texas also alleged that some members have physical disabilities or require assistance with reading the English language. CC Texas also connects voters to other organizations that provide free transportation to the polls for curbside voting. It also alleged that S.B. 1 amendments requiring voter assistants to provide detailed information under oath will deter them from helping voters and will make providing curbside transportation service “more cumbersome.” CC Texas expects that it will have to devote more time and resources away from its current initiatives to educate its membership and the broader public about these provisions.

CC Texas presents the same argument as NAACP. And the organizations otherwise challenge S.B.1's amendments and additions to the sections of the Election Code governing voter assistance through joint allegations in their petition. For the reasons discussed above, we likewise conclude that CC Texas has not established standing to challenge the complained-of voter assistance provisions. See Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 (“irreducible constitutional minimum” of standing requires that plaintiff have suffered an “injury in fact”).

4. Allegations in the Petition: Norman

Norman alleged that assisting a voter who cannot vote without assistance is “protected speech” and constitutes “core political speech” because it makes the voting process accessible to voters who would not otherwise be able to vote.

Norman alleged that S.B. 1 sections 6.01, 6.03, and 6.05—which added Election Code section 64.0322 and amended sections 64.009, 86.010—“place significant burdens on these protected speech and associational rights because their requirements of additional forms and statements under penalty of perjury, in addition to those already required by law, will make it more difficult for [her] to assist voters and dissuade persons like [her] from assisting voters in the first place.”

Norman's allegation that the requirement that she complete a form will generally make it “more difficult” for her to assist voters does not allege a “concrete and particularized” injury. See Heckman, 369 S.W.3d at 155.

To the extent Norman complains about the effect of these provisions on others, i.e., “persons like [her],” she fails to plead facts demonstrating that she has suffered injury. See id. (plaintiff “must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury”).

Norman also alleged that S.B. 1 section 6.04—which amended Election Code section 64.034—will “chill” her “constitutionally permissible speech and dissuade [her] from assisting voters in the future.” She acknowledged that section 64.034 previously required her to complete an oath, and she does not challenge that requirement. Rather, she challenged the amended language.

Specifically, she alleged that section 64.034, which “requires voter assistants to swear under penalty of perjury that they will not ‘pressure’ voters to accept their assistance,” “limits voter assistants like [her] from being able to explain to limited-English speaking voters that they can receive lawful assistance.” She alleged that the word “pressure” is “extremely broad and may encompass” many of her activities, such as holding up signs. (Emphasis added.)

“To establish standing based on a perceived threat of injury that has not yet come to pass, the threatened injury must be certainly impending to constitute injury in fact; mere allegations of possible future injury are not sufficient.” In re Abbott, 601 S.W.3d at 812. Norman's allegation of a possibility of future injury is insufficient to establish standing.

Lastly, with respect to Election Code section 64.009(f), governing assistance with curbside voters, Norman alleges that “[t]hough she has not yet transported curbside voters, ․ she expects that she may have to transport curbside voters in the years to come.” (Emphasis added.) Again, Norman's alleged injuries are merely conjectural or hypothetical, and are not actual or imminent. See Heckman, 369 S.W.3d at 154–55; Neeley, 176 S.W.3d at 774.

We conclude that Norman has not established standing to challenge the complained-of voter assistance provisions. See Heckman, 369 S.W.3d at 154.

C. Solicitation and Distribution of Applications to Vote by Mail

In their petition, NAACP, CC Texas, and Norman argued that S.B. 1's addition to the Election Code of a provision prohibiting the solicitation and distribution of applications to vote by mail ²⁷ violates the right to vote. See Tex. Const. art. I, § 3.

1. S.B. 1 Addition

S.B. 1 section 7.04 added Election Code section 276.016, which makes it a state jail felony for a public official or election official to knowingly solicit the submission of an application to vote by mail from a person who did not request an application or to knowingly distribute an application to vote to such person, unless the distribution is expressly authorized by another provision of this code. Tex. Elec. Code § 276.016(a)-(b). Section 276.016 also makes it an offense to knowingly authorize or approve the expenditure of public funds to facilitate third-party distribution of such applications. See id.

2. Allegations in the Petition: NAACP

NAACP alleged that it relies on community gatherings to educate its members regarding their right to vote by mail. It alleged that, “[b]y prohibiting election officials from ‘soliciting’ a person to complete a vote by mail application, Section 7.04 is broad enough to chill any public engagement by election officials with [NAACP], significantly burdening the right to vote” of their members.” And, “[b]y prohibiting election officials from distributing vote-by-mail applications unless a request is made by a voter, Section 7.04 also prevents election officials from providing nonpartisan civic engagement groups, churches, or grassroots volunteers with applications for them to distribute to voters.” NAACP alleges that “[t]hese voters may not be able to vote by mail if they are not ‘solicited’ by election officials at these gatherings.”

NAACP does not allege that Election Code section 276.016 impinges on its ability to hold gatherings and educate its members regarding the right to vote by mail. Rather, it appears to complain that its inability to distribute applications for mail-in ballots at its functions violates the right to vote.

“The fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail.” Abbott v. Anti-Defamation League Austin, 610 S.W.3d 911, 919 n.9 (Tex. 2020) (internal quotations omitted). Thus, there can be no concrete injury to that right by prohibiting the distribution of unsolicited mail-in-ballot applications. See id.

Further, to the extent NAACP complains about the effect of the provision on other groups, election officials, churches, grassroots volunteers, and the public, NAACP does not have standing to assert claims on their behalf. See Abbott, 647 S.W.3d at 690 (“[A]n association has standing to sue on behalf of its members when ․ its members would otherwise have standing to sue in their own right.”); Heckman, 369 S.W.3d at 155 (plaintiff “must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury”).

3. Allegations in the Petition: CC Texas

CC Texas presents the same argument as NAACP. And it otherwise challenged this amendment to the Election Code through joint allegations in the petition with NAACP. For the reasons discussed above, we likewise conclude that CC Texas has not established standing to challenge the complained-of provision. See Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 (“irreducible constitutional minimum” of standing requires that plaintiff have suffered an “injury in fact”).

4. Allegations in the Petition: Norman

Norman alleged that she assists eligible vote-by-mail voters by requesting mail-in ballot applications from the Harris County clerk's office and distributing them to members of her church and other community members who are “typically sixty-five years or older or have physical disabilities preventing them from voting in person.” She alleged that because this provision prohibits the clerk's office from distributing unsolicited mail-in ballot applications, she “does not know how eligible Korean American community members who do not own a computer, do not know how to use a computer, or have limited English proficiency will be able to access vote-by-mail applications.”

Norman's complaint about the effect of this provision on “community members” does not establish an injury to her. See Heckman, 369 S.W.3d at 155 (plaintiff “must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury”).

We conclude that NAACP, CC Texas, and Norman have not established standing to challenge S.B.1's addition to the Election Code ²⁸ of the provision prohibiting the solicitation and distribution of applications to vote by mail.

D. Early Mail-in Voting: Identification Requirements

In their petition, NAACP and CC Texas challenge S.B.1's additions and amendments to sections of the Election Code governing mail-in voting.²⁹ They argue that these provisions unconstitutionally burden their members' right to vote. See Tex. Const. art. I, § 3.

1. S.B. 1 Additions and Amendments

S.B.1 section 5.02 amended Election Code section 84.002 to include that an application for an early-voting mail-in ballot must include the number of the applicant's driver's license, election identification certificate, or personal identification card. Tex. Elec. Code § 84.002 (a) (1-a). If the applicant is without any of these, he must include the last four digits of his social security number or include a statement that none of these have been issued. Id. § 84.002 (a) (1-a) (B), (C).³⁰

S.B. 1 section 5.07 amended Election Code 86.001 to add subsections (f), (f-1), and (f-2). If the information required under section 84.002(a) (1-a) above “does not identify the same voter identified on the applicant's application for voter registration under Section 13.002(c)(8), the clerk shall reject the application.” Id. § 86.001(f).

If an application for an early-voting mail-in ballot is rejected under subsection (f), “the clerk shall provide notice of the rejection.” Id. § 86.001(f-1); see also id. § 86.001(c). “The notice must include information regarding the ability to correct or add information required under Section 84.002(a)(1-a) through the online tool described by Section 86.015(c).” Id. § 86.001(f-1). If an applicant corrects an application online and “that application subsequently identifies the same voter identified on the applicant's application for voter registration, the clerk shall provide a ballot to the applicant.” Id. § 86.001(f-2).

With respect to providing a ballot, the early voting clerk shall also provide an official ballot envelope and “carrier envelope.” Id. § 86.002. S.B. 1 section 5.08 amended Election Code 86.002 by adding subsections (g)-(i). The “carrier envelope must include a space that is hidden from view when the envelope is sealed for the voter to enter [the information required under § 84.002(a) (1-a)].” Id. § 86.002(g). A person may use an expired driver's license or identification number or certificate if it is otherwise valid. Id. § 86.002(h). And no record associating an individual voter with a ballot may be created. Id. § 86.002(i).

S.B.1 section 5.10 amended Election Code 86.015(c) to require that an online tool must allow a voter to add or correct information required under sections 84.002(a) (a-1) or 86.002(g). Id. § 86.015(c).

With respect to accepting the early-voting mail-in ballot itself, S.B. 1 section 5.13 amended Election Code section 87.041(b) and added (d-1). A ballot may be accepted only if certain criteria are met, including that “the information required under section 86.002(g) [see § 84.002(a) (1-a) (number of applicant's driver's license, election identification certificate, or personal identification card; last four digits of social security number; or statement that none exist] provided by the voter identifies the same voter” as on the voter's application for voter registration. See id. § 87.041(b)(8).³¹ If a voter provides the information required under Section 86.002(g) and it identifies the same voter identified on the voter's application for voter registration, “the signature on the ballot application and on the carrier envelope certificate shall be rebuttably presumed to be the signatures of the voter.” See id. § 87.041(d-1).

S.B. 1 section 5.12 added section 87.0271 to the Election Code. Section 87.0271 provides an opportunity for voters to correct certain defects in early voting ballots voted by mail. See id. § 87.0271. Such defects include a carrier envelope certificate missing a signature, or in which it cannot be immediately determined whether the signature on the envelope is that of the voter, or other missing or incomplete information—including that required under sections 84.002(a) (a-1) or 86.002(g). See id. § 87.0271(a). “Not later than the second business day after a signature verification committee discovers a defect,” and before the committee decides whether to accept or reject a timely delivered ballot, the committee “shall” determine whether it is possible for the voter to correct the defect and return the envelope before the polls close on election day. Id. § 87.0271(b).³²

If so, the committee must return the envelope to the voter by mail. Id. And if not, the committee “may” notify the voter of the defect by telephone or email ³³ and inform the voter that he may request to have his application canceled or come to the early voting clerk's office in person not later than the sixth day after the election to correct the defect. Id. § 87.0271(c).

The Secretary of State “may prescribe any procedures necessary to implement” section 87.0271. Id. § 87.0271(f). And a poll watcher is entitled to observe an action taken under subsection (b) or (c). Id. § 87.0271(e).

2. Allegations in the Petition: NAACP

NAACP alleged that these provisions “unlawfully and unconstitutionally” burden their members' right to vote “by imposing a match requirement on voters applying to vote by mail and casting vote-by-mail ballots” that “increase[s] the likelihood that their applications and/or mail-in ballots are rejected” and “leaves voters subject to a flawed cure process.”

It complained that these provisions subject its members to the “risk of erroneous rejection [of their ballots] if they do not timely receive notice [of a defect] and opportunity to cure their ballots, which is probable given the tight timelines around requesting vote-by-mail ballots, receiving ballots, and returning ballots to election boards in time.” And members who are elderly or disabled “might not be able to navigate the complex cure process associated with rejected mail-in ballot applications, including many members who do not have access to a computer and therefore will be unable to use the online cure system.”

The United States Supreme Court and Supreme Court of Texas have rejected the claim that restrictions on the receipt of absentee ballots interfere in any manner with the “fundamental right to vote.” Abbott, 610 S.W.3d at 919 n.9 (citing McDonald v. Bd. of Elec. Comm'rs of Chi., 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969)). “[T]he fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail.” Tully v. Okeson, 977 F.3d 608, 611 (7th Cir. 2020); see also Crawford v. Marion Cnty. Elec. Bd., 553 U.S. 181, 209, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (Scalia, J., concurring) (“That the State accommodates some voters by permitting ․ casting of absentee ․ ballots is an indulgence—not a constitutional imperative.”).

To have standing to raise its claim, NAACP must demonstrate having suffered an injury in fact—an invasion of a “legally protected interest.” Heckman, 369 S.W.3d at 155. These provisions governing voter identification on applications to vote by mail and mail-in ballots, and those governing cure, do not abridge the right to vote and therefore do not invade a legally protected interest. See Abbott, 610 S.W.3d at 919 n.9.

3. Allegations in the Petition: CC Texas

CC Texas presents the same argument as NAACP. And it otherwise challenged these provisions through joint allegations in the petition with NAACP. For the reasons discussed above, we likewise conclude that CC Texas has not established standing to challenge the complained-of additions and amendments governing mail-in voting. See Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 (“irreducible constitutional minimum” of standing requires that plaintiff have suffered an “injury in fact”).

We conclude that NAACP and CC Texas have not established standing to bring their claims challenging S.B.1's additions and amendments to sections of the Election Code governing mail-in voting.³⁴

E. Equal Protection

NAACP, CC Texas, Norris, and Norman allege that S.B.1 ³⁵ violates equal protection because it was enacted with the purpose of discriminating against Black, Hispanic, and Asian voters based on race or ethnicity, thus making it harder for them, as well as other minorities, to vote. See Tex. Const. art. I, § 3.³⁶

NAACP, CC Texas, and Norris collectively alleged:

The year 2020 saw the highest turnout of voters in decades. Thousands of voters in predominantly minority counties were able to cast ballots, including in Harris County, which implemented extended early voting, drop boxes, and drive-thru voting to help its voters cast ballots and return vote-by-mail safely during a pandemic. [NAACP and CC Texas] members who identify as Black, Hispanic, and Asian voted safely by using these alternative voting methods. Plaintiff Norris voted through drive-thru voting and was able to protect his immunosuppressed wife and his young children from potentially contracting COVID-19.

NAACP, CC Texas, and Norris alleged that “S.B. 1 is specifically aimed at curtailing methods of voting used by Black, Hispanic, and Asian voters that helped increase their political power during the 2020 elections.” And “S.B. 1 will make it more difficult for these voters to vote by mail, to vote early, and to deliver their ballots.”

1. S.B.1 Additions and Amendments

S.B.1 section 3.04 amended Election Code section 43.031(b) by adding: “No voter may cast a vote from inside a motor vehicle unless the voter meets the requirements of Section 64.009 [curbside voting (above)].” Tex. Elec. Code § 43.031(b).

S.B. 1 section 3.09 amended Election Code section 85.005(a) to specify that “voting may not be conducted earlier than 6 a.m. or later than 10 p.m.” Id. § 85.005(a). Similarly, S.B. 1 section 3.10 amended Election Code section 85.006(e) to specify that “on the last Saturday of the early voting period,” “voting may not be conducted earlier than 6 a.m. or later than 10 p.m.” And “on the last Sunday of the early voting period,” “voting may not be conducted earlier than 9 a.m. or later than 10 p.m.” Id. § 85.006(e).³⁷

S.B.1 sections 3.12 and 3.13 amended Election Code sections 85.061(a) and 85.062(b), respectively, to specify that an early voting polling place, whether permanent or temporary, shall be located “inside” a branch office. Id. § 85.061(a), 85.062(b).

S.B.1 section 4.12 amended Election Code section 86.006 to add subsection (a-2): “An in-person delivery of a marked ballot voted under this chapter must be received by an election official at the time of delivery.” Id. § 86.006(a-2).

2. Allegations in the Petition: NAACP, CC Texas, and Norris

NAACP, CC Texas, and Norris complain that these amendments to S.B. 1—which prohibit extended early voting, drop boxes, and drive-thru voting—violate equal protection. But they acknowledge in their brief that extended early voting, drop boxes, and drive-thru voting were “alternative methods of voting” that were adopted in only two Texas counties—Harris and Travis—and in response to a public health crisis—the COVID-19 pandemic. (Emphasis added.)

“The right to vote is fundamental, as it preserves all other rights.” Andrade, 345 S.W.3d at 12 (citing Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (“When the state legislature vests the right to vote ․ in its people, the right to vote as the legislature has prescribed is fundamental; and once source of its fundamental nature lies in the equal weight afforded to each vote and the equal dignity owed to each voter.”)). “But that does not mean states cannot regulate the franchise.” Id. And “the Constitution does not require a state to afford every voter multiple infallible ways to vote.” Abbott, 610 S.W.3d at 921 (rejecting that restrictions on the receipt of absentee ballots interfere in any manner with the “fundamental right to vote”).

Here, to have standing to raise their claims that restrictions on such “alternative voting methods” violate equal protection, NAACP, CC Texas, and Norris must each demonstrate an invasion of a “legally protected interest.” Heckman, 369 S.W.3d at 155. They cannot show an injury because there is not a legally protected interest in these “alternative voting methods” for anyone. See Abbott, 610 S.W.3d at 919 n.9.

3. Allegations in the Petition: Norman

Norman alleged that S.B. 1's provisions “target her and other assistants seeking to help limited-English speaking voters on the basis of national origin and ultimately chill their ability to help community members vote.”

Norman claims the provisions “target” her, but she does not allege a concrete and particularized injury. See Heckman, 369 S.W.3d at 154. To the extent she complains of the effects of the provisions on “other assistants,” she fails to plead facts demonstrating that she has suffered injury. See id. at 155.

We conclude that NAACP, CC Texas, Norris, and Norman cannot establish standing to bring their equal protections claims based on S.B.1's additions and amendments to sections of the Election Code governing alternative voting methods.

F. Cumulative Challenge

Lastly, NAACP, CC Texas, Norris, Norman, Nugent, Blanco, and Bloomquist alleged that the “cumulative changes to the Texas Election Code from S.B. 1's enactment,” and “in particular” to the provisions challenged above, “violate [their] constitutional rights and those of [the organizational] members.”

A plaintiff must demonstrate standing for each of his claims. Heckman, 369 S.W.3d at 152–53. And courts “must analyze the standing of each individual plaintiff to bring each individual claim he or she alleges.” Patel, 469 S.W.3d at 77. “[S]tanding is not dispensed in gross.” Heckman, 369 S.W.3d at 153 (internal quotations omitted). Thus, we “assess standing plaintiff by plaintiff, claim by claim”―as we have done above―and conclude that each plaintiff here failed to demonstrate cause in fact for each asserted claim. See id. Appellees attempt to overcome this jurisdictional shortcoming by maintaining that standing can still be shown on a cumulative basis. But they cite us to no authority, and we are aware of none, that allows for standing to exist on a cumulative or global basis.

Accordingly, for all the reasons above, we conclude that appellees failed to meet their burden to plead facts affirmatively demonstrating that they will suffer an injury in fact to bring their claims. We also conclude that their pleadings affirmatively negate jurisdiction on this basis. We therefore hold that the trial court lacks subject matter jurisdiction over appellees' claims.

Traceability

The trial court additionally lacks subject matter jurisdiction over appellees' claims because they also failed to demonstrate the required element of traceability.

To show traceability, a plaintiff must plead sufficient facts demonstrating “a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” See In re Abbott, 601 S.W.3d at 808 (quoting Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130). Unsubstantiated allegations and mere speculation fail to make this showing. That is the very type of attenuation the traceability requirement is intended to prevent. Id. at 812; Ferrara v. Kim Vickers-Public Off. of Tex. Comm'n, 658 S.W.3d 902, 908 (Tex. App.—El Paso 2022, no pet.).

For suits challenging the constitutionality of a statute brought against a State entity or official, Texas courts have followed a more particularized standard for traceability. Namely, a plaintiff must properly plead an “actual enforcement connection” between the challenged statute and the state entity or official—and that the entity or official has threatened to or will likely exercise that enforcement power against the plaintiff. See State v. City of Hous., No. 03-23-00531-CV, --- S.W.3d ––––, 2025 WL 2014935, at *6–7 (Tex. App.—Austin 2025, no pet.); Abbott v. Doe, 691 S.W.3d 55, 80 (Tex. App.—Austin 2024), rev'd on other grounds, Muth v. Voe, No. 24-0384, --- S.W.3d ––––, 2026 WL 1108685 (Tex. Apr. 24, 2026); Paxton, 640 S.W.3d at 602–03; Ector Cnty. All. of Bus. v. Abbott, No. 11-20-00206-CV, 2021 WL 4097106, at *10 (Tex. App.—Eastland 2021, no pet.) (mem. op.); City of El Paso v. Tom Brown Ministries, 505 S.W.3d 124, 147 (Tex. App.—El Paso 2016, no pet.).³⁸

The required “enforcement connection” is shown under Texas law when the state official or entity being sued is specifically assigned the role of enforcing the challenged statute. City of Hous., 2025 WL 2014935, at *7. Texas courts have sought to clarify how much of a “connection” is necessary to make this showing. And they have looked to Fifth Circuit decisions involving the Ex parte Young ³⁹ exception to Eleventh Amendment sovereign immunity suits for guidance.⁴⁰ See Abbott, 691 S.W.3d at 80; Paxton, 640 S.W.3d at 602–03; Ector Cnty. All. of Bus., 2021 WL 4097106, at *10; City of El Paso, 505 S.W.3d at 147.

Under Young—and consistent with Texas caselaw on traceability—a plaintiff who sues a state official in federal court challenging a state statute must plead sufficient facts demonstrating an “enforcement connection” between the state official or entity and the statute in question. See Tex. All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th Cir. 2022); Tex. Democratic Party v. Hughs, 860 Fed. Appx. 874, 877 (5th Cir. 2021). And this “enforcement connection” is similarly shown when the “state actor or agency is statutorily tasked with enforcing the challenged law.” See Lewis v. Scott, 28 F.4th 659, 663 (5th Cir. 2022) (internal quotations omitted).⁴¹

The Fifth Circuit has articulated the following guideposts for making this determination. See Tex. All. for Retired Ams., 28 F.4th at 672.

First, it must be shown that the official has more than just the general duty to see that the laws of the state are implemented. Id.; see Lewis, 28 F.4th at 663. In the context of Texas elections and the Secretary of State, the Fifth Circuit has explained that the role of the Secretary of State varies―“[s]o we must identify the Secretary's specific duties within the particular statutory provision” in determining whether an “enforcement connection” has been shown. See Tex. Democratic Party, 860 Fed. Appx. at 877.

Merely pointing to the Secretary's broad duties to oversee the administration of Texas's election laws, to train and advise, or as chief election officer have been held to fall short of showing the necessary “enforcement connection.” See Lewis, 28 F.4th at 663; Richardson v. Flores, 28 F.4th 649, 654 (5th Cir. 2022). “More is needed―namely, a showing of the Secretary's connection to the enforcement of the particular statutory provision that is the subject of the litigation.” Lewis, 28 F.4th at 664 (internal quotations omitted); see also Ostrewich v. Tatum, 72 F.4th 94, 100 (5th Cir. 2023).

Second, the state official must have “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Tex. All. for Retired Ams., 28 F.4th at 672 (internal quotations omitted); see also Richardson, 28 F.4th at 654.

And, third, “enforcement means compulsion or constraint.” Tex. All. for Retired Ams., 28 F.4th at 672 (internal quotations omitted). If the state official does not compel or constrain anyone to obey the challenged law, then enjoining that official could not stop any alleged constitutional violation. Id. Merely “[o]ffering advice, guidance, or interpretive assistance does not compel or constrain.” Richardson, 28 F.4th at 655.

Given the significant overlap between standing and the Young exception to immunity, we view these guideposts as instructive in addressing the traceability issue before us. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (Texas courts may draw upon Fifth Circuit precedent as instructive and persuasive); see also supra note 44.

Here, appellees maintain that they demonstrated an “enforcement connection” between the Secretary of State and the challenged provisions of S.B. 1 because they collectively pleaded as follows:

The Secretary is the ‘chief election officer’ of the State and is responsible for ‘assist[ing] and advis[ing] all election authorities with regard to the application, operation, and interpretation of this [Election] code and of the election laws outside this code.’ Tex. Elec. Code §§ 31.001(a), 31.004(a). The Secretary also oversees the Texas Elections Divisions, which is responsible for administering the Texas Election Code for Texas voters, elections, voting systems, candidates and political parties. Id. at § 31.001(b).

And appellees primarily rely on the Secretary's role as “chief election officer” to make that showing. Id. Section 31.001(a) of the Election Code indeed provides that the Secretary is the “chief election officer of the state.” But the Legislature chose not to define that term. There is no language in section 31.001, or anywhere else in the Election Code, that specifies what “chief election officer” means or what enforcement authority, if any, that title confers upon the Secretary with respect to any of the provisions in the Code.

Faced with this statutory silence, appellees turn to OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017), to fill it.⁴² According to appellees, OCA stands for the proposition that “chief election officer of the state” means that the Texas Secretary of State has enforcement authority, as a matter of law, over every provision in the Election Code—including the challenged provisions of S.B. 1. And therefore appellees assert that this title automatically establishes traceability here and in every case where the Secretary is sued. We disagree.

In OCA, the plaintiffs sought declaratory and injunctive relief against the State of Texas and Secretary of State alleging that a provision of the Texas Election Code impermissibly restricted the interpretation assistance that English-limited voters could receive. Id. at 606–07. The State of Texas and the Secretary of State defended on several grounds, including that the plaintiffs lacked standing. Id. at 607. The district court disagreed with their position on standing and the OCA court affirmed on that point. Id. at 607, 614.

In concluding that traceability was satisfied “without question” as to the Secretary of State, the OCA court acknowledged that the statute at issue did not provide for enforcement by anyone. Id. at 613. But it nevertheless concluded that traceability was satisfied there because the statute at issue “applies to every election held in the State of Texas” and “the Texas Secretary of State is the ‘chief election officer of the state’ [who] is instructed by statute to ‘obtain and maintain uniformity in the application, operation, and interpretation of this [Election] code and of the election laws outside this code.’ ” Id. at 613–14 (citing Tex. Elec. Code §§ 31.001(a), 31.003).

We do not read OCA as holding that the Texas Secretary of State, as “chief election officer,” automatically has an “enforcement connection” with every provision of the Election Code as a matter of law. See Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972) (holding the Secretary's title “chief election officer” is not “a delegation of authority to care for any breakdown in the election process”); see e.g., In re Hotze, 627 S.W.3d 642, 649 (Tex. 2020) (Blacklock, J., concurring).

Indeed, such a reading of OCA would be contrary to Texas law on this point. As detailed above, to show traceability in this context, Texas courts require a particularized showing of an actual “enforcement connection” between the challenged statute and the state entity or official being sued. See City of Hous., 2025 WL 2014935, at *6–7; Abbott, 691 S.W.3d at 80; Paxton, 640 S.W.3d at 602–03; Ector Cnty. All. of Bus., 2021 WL 4097106, at *10. To the extent that OCA embraces a different analysis, and adds new words to section 31.001(a), we decline to follow it.⁴³ See City of Pasadena v. Poulos, No. 01-22-00676-CV, 2023 WL 7134974, at *10, n.1 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (mem. op.) (Fifth Circuit precedent is not binding on this Court)

Our conclusion is buttressed by the initial guidepost discussed above; namely, “an official must have more than a ‘general duty’ to see that the laws of the state are implemented.” In that regard, the Fifth Circuit has recognized that the title of “chief election officer” alone “fail[s] to make the Secretary the enforcer of specific election code provisions.” “More is needed—namely, a connection to the enforcement of the particular statutory provision that is subject of the litigation.” Tex. All. for Retired Ams., 28 F.4th at 674 (internal quotations omitted); see Lewis, 28 F.4th at 664; Richardson, 28 F.4th at 654; see also La Union Del Pueblo Entero v. Abbott, 119 F.4th 404, 409 (5th Cir. 2024) (“Neither the Secretary of State nor the Attorney General enforces S.B. 1.”). The same is true here. The general title of “chief election officer,” as pleaded by appellees, fails to show that the Secretary has a particular duty to enforce any of the challenged provisions of S.B. 1. See Tex. All. for Retired Ams., 28 F.4th at 674.

The same reasoning also applies to the other two provisions of the Election Code that appellees pleaded—section 31.001(b) and section 31.004(a). They likewise prescribe general duties of the Secretary relating to “the administration of elections” and “the application, operation, and interpretation” of the Election Code and other election laws. Tex. Elec. Code §§ 31.001(b), 31.004(a).⁴⁴

Notably, neither provision is part of S.B. 1 and neither provision is being challenged in this case. Moreover, neither provision sets forth any enforcement duties or responsibilities of the Secretary over any part of the Election Code. And we may not read such duties into these statutes. See Bonsmara Nat. Beef Co., LLP v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 391–92 (Tex. 2020).

Accordingly, the plain language of sections 31.001(b) and 31.004(a) fails to demonstrate the necessary “enforcement connection” between the Secretary and any of the challenged provisions of S.B. 1. And, again, the rationale of the Fifth Circuit under the initial guidepost above is persuasive here—“[n]one of these statutes creates the relevant connection between the Secretary and any of the challenged provisions. The Secretary's general duties fail to make [him] the enforcer of specific election code provisions.” See Lewis, 28 F.4th at 664 (internal quotations omitted); see also Tex. All. for Retired Ams., 28 F.4th at 674; Richardson, 28 F.4th at 654. There must be a showing of the Secretary's connection to the enforcement of the particular statutes being challenged in this case—and that is missing here. See City of Hous., 2025 WL 2014935, at *7; Abbott, 691 S.W.3d at 80; Paxton, 640 S.W.3d at 603; Ector Cnty. All. of Bus., 2021 WL 4097106, at *10.

Appellees also point to three other provisions of the Election Code that they did not include in their pleadings in the trial court—sections 31.002, 31.006(a), and 33.008. Because no evidence was offered below, our consideration of appellees' standing in this case is limited to their live pleadings. See Paxton, 640 S.W.3d at 603–04; see also F/WPBS, Inc. v. City of Dall., 493 U.S. 215, 235, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (“[T]he necessary factual predicate [for standing] cannot be gleaned from the [appellate] briefs and arguments themselves.” (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1990))).

When predicates for standing are raised for the first time on appeal, they are waived and courts should decline to consider them. See California v. Texas, 593 U.S. 659, 674, 141 S.Ct. 2104, 210 L.Ed.2d 230 (2021); see also Richardson, 28 F.4th at 654. We adhere to these principles. But even if we could consider these unpled provisions of the Election Code, they also fail to show the necessary “enforcement connection” between the Secretary and the challenged provisions of S.B. 1.

Again, none of these provisions are part of S.B.1 and they are not being challenged in this case. They also all prescribe general duties of the Secretary relating to the administration of this Election Code.

Section 31.002 states in pertinent part that “the secretary of state shall prescribe the design and content ․ of the forms necessary for the administration of this [Election] [C]ode.” Tex. Elec. Code § 31.002 (emphasis added). And section 31.006(a) provides that “the secretary shall promptly refer ․ information to the attorney general” that it receives or discovers “indicating that criminal conduct in connection with an election has occurred.” Id. § 31.006(a) (emphasis added). And section 33.008 states that “[t]he secretary of state shall develop and maintain a training program for [poll] watchers.” § 33.008 (emphasis added).

According to appellees, section 31.006(a) in particular satisfies the element of traceability here because it allows the Secretary to initiate prosecution for violations of S.B. 1. This provision, however, does not say that. It simply requires the Secretary to refer information of criminal conduct relating to an election to the attorney general. The Secretary has no authority under section 31.006 to act on that information or to initiate an investigation or prosecution. That enforcement power is reserved in the statute to only the attorney general. See id. § 31.006(b). The plain language of section 31.006 thus undercuts appellees' reliance on it.

Sections 31.002 and 33.008 also do not show any “enforcement connection” between the Secretary and the challenged provisions of S.B. 1. These statutes describe general duties of the Secretary “to prescribe the design and content” of forms for elections and to “develop and maintain a training program” for poll watchers. Id. §§ 31.002, 33.008. And there is no language in any of these statutes that describes any enforcement duties of the Secretary over any part of the Election Code—including the challenged provisions of S.B. 1.

Accordingly, nothing in appellees' live pleading demonstrates an actual “enforcement connection” between the challenged provisions of S.B. 1 and the Secretary of State. As a result, appellees also cannot make the further required showing that the Secretary is likely to enforce, or has threatened to enforce, any of the challenged statutes here. See City of Hous., 2025 WL 2014935 at *7; Abbott, 691 S.W.3d at 80–81; In re Abbott, 601 S.W.3d at 812; Ector Cnty. All. of Bus., 2021 WL 4097106, at *10.

We therefore conclude that appellees failed to demonstrate that their alleged pre-enforcement injuries from the challenged provisions of S.B. 1 are fairly traceable to the Secretary of State. And no amount of repleading can show traceability here with respect to the Secretary. See Abbott, 691 S.W.3d at 81.

Conclusion

For all of the reasons above, we hold that appellees have failed to establish that they have standing to pursue their claims for declaratory and injunctive relief against the Secretary of State in this case regarding S.B. 1. We therefore reverse the trial court's order for lack of subject matter jurisdiction and render judgment dismissing appellees' claims against the Secretary of State. Having noted above that appellees no longer maintain their claims against the Deputy Secretary of State and they concede on appeal that their claims against the Attorney General should be dismissed, we dismiss appellees' claims against the Deputy Secretary of State and the Attorney General.

FOOTNOTES

1.   See Tex. Gov. Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2094–95 (2020); see also Tex. Gov't Code § 418.014 (“Declaration of State of Disaster”).

2.   See Tex. Gov. Proclamation No. 41-3752, 45 Tex. Reg. 5449, 5456–57 (2020).

3.   See Tex. Elec. Code §§ 31.001 (“Chief Election Officer”), 31.003 (“Uniformity”); 31.004 (“Assistance and Advice”); Tex. Sec'y State, Election Advisory No. 2020-14, https://www.sos.state.tx.us/elections/laws/advisory2020-14.shtml.

4.   Act of Aug. 31, 2021, 87th Leg. 2d C.S., ch. 1 (S.B.1), §§ 1.01–10.04, 2021 Tex. Gen. Laws 3873–3903.

5.   See Tex. Elec. Code ch. 33.

6.   Act of Aug. 31, 2021, 87th Leg. 2d C.S., ch. 1 (S.B.1), 2021 Tex. Gen. Laws 3873, 3903.

7.   Texas State Conference of the NAACP, Common Cause Texas, Danyahel Norris, Hyun Ja Norman, Freddy Blanco, Mary Flood Nugent, and Priscilla Bloomquist.

8.   John or Jane Doe, in his official capacity as the Secretary of State of Texas, Joe Esparza, in his official capacity as the Deputy Secretary of The State of Texas, and Ken Paxton, in his official capacity as the Attorney General of Texas.

9.   See Tex. Elec. Code §§ 1.0015, 31.128–.130, 32.075(g), 33.051(g), 33.056(e)-(f), 33.061(a), 43.031(b), 64.009(e), (f), (f-1), (h), 64.0322, 64.034, 84.002(a), (b-1), 84.011(a), 85.005, 85.006(e), 85.061(a), 85.062(b), (f-1), 86.001(f), (f-2), 86.002(g)-(i), 86.006(a-2), 86.010(e), (h), (i), 86.015(c), 86.016(c), 87.0271, 87.041(b), (d-1), (e), 276.016.

10.   See Tex. R. Civ. P. 91a.

11.   See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

12.   See Tex. Const. art. I, §§ 3, 19.

13.   See Tex. Const. art. I, § 3.

14.   See Tex. Const. art. I, § 8.

15.   See Tex. Const. art. I, §§ 3, 19.

16.   Because we sustain the state officials' contention on appeal that appellees lack standing to assert their claims, we do not reach whether the trial court erred in denying the state officials' motion to dismiss, in which they challenged appellees' standing on other grounds. See Tex. R. Civ. P. 91a.2 (“A motion to dismiss ․ must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.”).

17.   Texas courts therefore look to the federal courts, especially to the United States Supreme Court and Fifth Circuit, for guidance on these elements. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012).

18.   S.B. 1 §§ 4.01(g), 4.06(g), 4.07(e), 4.09, 6.01(e), and 8.01; Tex. Elec. Code §§ 32.075(g), 33.051(g), 33.056(e)-(f), 33.061(a), 33.128–.130, 64.009(e), (f), (f-1), (h).

19.   See Tex. Const. art. I, § 3 (“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”).

20.   See Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”).

21.   “Notwithstanding Subsection (g), a presiding judge may call a law enforcement officer to request that a poll watcher be removed if the poll watcher commits a breach of the peace or a violation of law.” Tex. Elec. Code § 32.075(h).

22.   NAACP and CC Texas argue that their general allegations of injury establish “organizational standing,” citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). Organizational standing under Havens allows an entity to establish standing based on an injury to itself—such as mission impairment or a diversion of resources—as opposed to acting on behalf of its members. But “no Texas state court has recognized the concept of [Havens-type] organizational standing.” People for the Ethical Treatment of Animals, Inc. v. Bandera Wranglers, No. 04-21-00466-CV, 2023 WL 1810496, at *3 (Tex. App.—San Antonio Feb. 8, 2023, no pet.) (mem. op.). And adopting Havens would supplant our longstanding precedent requiring a concrete injury, traceability, and redressability. See id. Thus, to the degree appellees assert Havens-type organizational standing here, we decline to adopt it.

23.   S.B. 1 §§ 4.01(g), 4.06(g), 4.07(e), 4.09, 6.01(e), and 8.01; Tex. Elec. Code §§ 32.075(g), 33.051(g), 33.056(e)-(f), 33.061(a), 33.128–.130, 64.009(e), (f), (f-1), (h).

24.   S.B. 1 §§ 6.01, 6.03–.05; Tex. Elec. Code §§ 64.009(e), (f), (f-1), and (h), 64.0322, 64.034, 86.010(e), (h), and (i).

25.   See Tex. Const. art. I, § 3 (“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”).

26.   See Tex. Const. art. I, § 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech ․”).

27.   S.B. 1 § 7.04; Tex. Elec. Code § 276.016.

28.   S.B. 1 § 7.04; Tex. Elec. Code § 276.016.

29.   SB1 §§ 5.02, 5.03, 5.07, 5.08, 5.10, 5.12, and 5.13; Tex. Elec. Code §§ 84.002(a), (b-1), 84.011(a), 86.001(f)–(f-2), 86.002(g)–(i), 86.015(c), 87.0271, 87.041(b), (d-1), (e).

30.   SB 1 section 5.03 amended Election Code section 84.011 to add that an application for an early-voting ballot must include a space for entering this information. Tex. Elec. Code § 84.011.

31.   Further, a ballot may be accepted only if “neither the voter's signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness.” Tex. Elec. Code § 87.041(b)(2). SB 1 section 5.13 amended 87.041 subsection (e) as follows: “In making the determination under Subsection (b)(2), to determine whether the signatures are those of the voter, the board may also compare the signatures with any known signature of the voter on file with the county clerk or voter registrar.” Id. § 87.041(e).

32.   We note that, in 2023, section 87.0271(b) was amended as follows:Not later than the second business day after a signature verification committee discovers a defect described by Subsection (a) and before the committee decides whether to accept or reject a timely delivered ballot under Section 87.027, the committee shall: send the voter a notice of the defect and a corrective action form developed by the secretary of state under Subsection (c-1) by mail or by common or contract carrier.Act of May 21, 2023, 88th Leg., R.S., ch. 1167, § 8, 2023 Tex. Gen Laws 3557, 3560. (codified at Tex. Elec. Code § 87.0271(b), eff. Sept. 1, 2023).

33.   Further, in 2023, section 87.0271 was amended to add section (e-1), which also provides for notification and correction through the online tool. See id.; see also Tex. Elec. Code § 86.015.

34.   S.B. 1 §§ 5.02, 5.03, 5.07, 5.08, 5.10, 5.12, and 5.13; Tex. Elec. Code §§ 84.002(a), (b-1), 84.011(a), 86.001(f)–(f-2), 86.002(g)–(i), 86.015(c), 87.0271, 87.041(b), (d-1), (e).

35.   S.B. 1 §§ 3.04, 3.09, 3.10, 3.12, 3.13, and 4.12; Tex. Elec. Code §§ 43.031(b), 85.005, 85.006(e), 85.061(a), 85.062(b), (f-1); 86.006 (a-2).

36.   See Tex. Const. art. I, § 3 (“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”).

37.   Section 85.006 was repealed, effective September 1, 2025. See Act of June 1, 2025, 89th Leg., R.S., ch. 1184, § 31(3).

38.   See also Rylander v. Caldwell, 23 S.W.3d 132, 138 (Tex. App.—Austin 2000, no pet.) (stating that court is without jurisdiction to determine constitutionality of statute unless party with authority to enforce challenged statute is named in suit and that court may not issue injunction unless “it is shown that the respondent will engage in or is engaging in the activity sought to be enjoined”).

39.   209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

40.   Indeed, immunity from suit, like standing, implicates a court's subject matter jurisdiction. See In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (standing is implicit in concept of subject matter jurisdiction). Eleventh Amendment sovereign immunity “prohibits suits against state officials or agencies that are effectively suits against the state.” Ostrewich v. Tatum, 72 F.4th 94, 100 (5th Cir. 2023) (quoting City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019)). The Young exception allows private parties to bring suits for injunctive or declaratory relief against individual state officials, but only if the state official “by virtue of his office” has “some connection with the enforcement of the [challenged] act.” City of Austin, 943 F.3d at 997 (quoting Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441).

41.   Indeed, the Fifth Circuit's analysis for standing and the Young exception to immunity “significantly overlap.” City of Austin, 943 F.3d at 1002. And the requirements for standing in Texas, including traceability, parallel the federal test embraced by the Fifth Circuit. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012).

42.   OCA stands for the Organization of Chinese Americans—a nonprofit organization with the primary mission of voter outreach and civil education. OCA-Greater Hou. v. Tex., 867 F.3d 604, 609 (5th Cir. 2017).

43.   Indeed, our supreme court has declined to follow OCA and its holding on traceability concerning the State of Texas. See Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681, 698 (Tex. 2022). In doing so, it noted OCA's rationale with respect to the Secretary (“chief election officer” = “enforcement connection”) but did not discuss or embrace it. Id.

44.   Section 31.001(b) states in pertinent part that “[t]he secretary may assign to [its] election divisions staff any function relating to the administration of elections that is under the secretary's jurisdiction.” Tex. Elec. Code § 31.001(b) (emphasis added). And section 31.004(a) states that “[t]he secretary of state shall assist and advise all election authorities with regard to the application, operation, and interpretation of this code and the election laws outside this code.” Id. § 31.004(a) (emphasis added).

Terry Adams, Chief Justice