Federal Court Rejects Paxton’s Anti-Immigrant Voter Harvesting Effort
A California anti-voter registration cartoon from the Santa Cruz Sentinel
Well, the Lazy-eyed Cowboy stepped back up to the plate once again last week. He went 0-2, walking and then striking out on some high heat big time. In the first case, the nonprofit law firm, Las Americas Immigrant Advocacy Center, filed sought to enjoin the Texas AG from enforcing an administrative subpoena. This time, the AG did not allege that nonprofit is participating in an illegal human smuggling operation. Instead, the law firm helps migrants enter the right way through a federal program allowing entry to up to 30,000 people from Cuba, Haiti, Nicaragua and Venezuela. The AG hates the program. So he’s using a novel argument to harass the organization, claiming to investigate Texas consumer protection violations. Here is a brief media excerpt:
On Sept. 4, Las Americas Immigrant Advocacy Center said it received a civil investigative demand from Paxton’s office seeking information and communications related to a migrant sponsorship program that allows up to 30,000 people from Cuba, Haiti, Nicaragua and Venezuela to legally migrate to the U.S. each month. Instead of responding to those demands, Las Americas — represented by lawyers with the Texas Civil Rights Project — filed a federal civil rights lawsuit on Wednesday seeking a preliminary injunction to stop Paxton’s investigation. The suit claims that the state is leveling “baseless” claims that have already affected the work of Las Americas, a 37-year-old organization that provides legal services to low-income migrants and advocates for immigrants’ rights.
Las Americas is well represented by attorneys from Winston & Strawn and the Texas Civil Rights Project, another tax exempt law firm. The verified complaint alleges that the AG’s investigation is intended to chill free speech, restrict viewpoints and retaliate against the organization for participating in another so far successful lawsuit enjoining the State from deport people. I don’t think Paxton cares about the Supremacy Clause. Anyway, a federal district judge in the Western District dismissed the case because it was not filed until one day before the date the records were due to the AG:
“Had plaintiff promptly filed this lawsuit shortly after receiving the CID (civil investigative demand) on September 4, 2024, the Court would have had plenty of time to make an informed ruling on plaintiff’s TRO (temporary restraining order) motion,” Guaderrama said in his ruling. “The Court could have set an expedited briefing schedule, given the Attorney General a chance to respond to plaintiff’s arguments, researched and analyzed the governing case law, and ruled on the motion in advance of the September 27th deadline.”
The plaintiffs might just not comply with the subpoena and then defend against its enforcement. That’s what I would do.
In the second case, Paxton faced a whole variety of nonprofits, including the League of Women Voters, the League of United Latin American Citizens, a 501(c)(5) labor union with 70,000 members called Texas AFT and the Texas Alliance for Retired Americans, a group with 4.5 million ornery old folk. I tell you what, the Civil Society folks down in Texas sure do get their backs up sometimes. They challenged parts of the Texas Election Code prohibiting a host of voter registration activities. The challenged statute pejoratively labels certain ill-defined voter registration activities “voter harvesting.” You can get ten years, even as a harvested voter, never mind the people doing the harvesting, so people aren’t so quick to participate in voter registration anymore. Or even talk about voter registration outside a grocery store.
The law requires that “records necessary to investigate an offense . . . shall be provided to a law enforcement officer upon request.” Well, Paxton is a law enforcement officer and we all know he ain’t shy about requesting records, especially from nonprofit migrant organizations with Spanish sounding names. The problem, of course, is that if he can get away with intimidating his favorite targets, there is no telling who might be next. Hence, the various groups joining in as plaintiffs.
A district court judge from the same Court, different division, set Paxton down after three straight fast balls just below the chin. In a nearly 80 page opinion, the judge found standing, that the statute was facially overbroad, and then that it was fatally vague. Here is a bit from the findings of fact:
All of the organizations:
(a) have supported ballot measures and/or candidates in the past and intend to do so in the future;
(b) have advocated for their positions through in-person voter engagement efforts, such as neighborhood block-walking, tabling in public places, and hosting candidate forums, town hall meetings, and other events at their offices and in members’ homes;
(c) reasonably expect mail-in ballots to be present during such interactions with voters, who often take out their ballots at election events or in conversations with door-to-door canvassers because they have questions about the ballot or needed voting assistance; and
(d) maintain staff and/or volunteers who receive some “compensation or other benefit” in exchange for their in-person canvassing efforts. Each Plaintiff has thus established an intention, as an organization, to engage in speech arguably proscribed by the Canvassing Restriction. See 303 Creative, 600 U.S. at 579–82; Susan B. Anthony List, 573 U.S. at 159 censored speech that is “arguably regulated by” the Canvassing Restrictions. Plaintiffs have also experienced a chilling effect on their associational rights, including their ability to recruit new members and volunteers and to assist voters during in-person events.
Here are excerpts from the Court’s three fastballs:
Strike One: Plaintiffs have suffered an organizational injury to their speech “Organizations, like individuals, enjoy rights to free speech, free exercise, and equal protection of the laws.” Caractor v. City of New York Dep’t of Homeless Servs., No. 11 CIV. 2990 DLC, 2013 WL 2922436, at *3 (S.D.N.Y. June 14, 2013) (citing Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936)); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010) (“Government may not suppress political speech on the basis of the speaker’s corporate identity”). Like individuals, an organization does not need to affirmatively violate a law to have standing to challenge it. See 303 Creative LLC v. Elenis, 600 U.S. 570, 579–82 (2023) (considering company’s First Amendment pre-enforcement challenge). Instead, the plaintiff need only “aver[] that it intend[s] to do so in the future.” Braidwood Mgmt., Inc. v. Equal Emp. Opportunity Comm’n, 70 F.4th 914, 927 n.23 (5th Cir. 2023).
Strike Two: The Canvassing Restriction criminalizes compensation for interactions rather than the actual delivery of votes and imposes liability based on the intent of the voter outreach activity—to encourage a voter to support a particular candidate or ballot measure—rather than its actual effect on a voter. Nothing in the text of the statute limits its application based on the voter’s perception of the interaction.
Strike Three: The Canvassing Restriction is unconstitutionally vague because people of common intelligence “must necessarily guess at its meaning and differ as to its application.”
darryll k. jones