Opinion
15-24-00037-CV
11-26-2024
JANE NELSON IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF TEXAS, Appellant v. TRAVIS EUBANKS, AMANDA EUBANKS, AND JARRETT WOODWARD VOTERS OF BEXAR COUNTY, Appellees
On Appeal from the 345th District Court Travis County, Texas Trial Court Cause No. D-1-GN-23-008370
Before Chief Justice Brister and Justices Field and Farris.
MEMORANDUM OPINION
Scott Brister Chief Justice
In November 2013, Texas voters approved 13 amendments to the Texas Constitution. Shortly thereafter, Travis Eubanks, Amanda Eubanks, and Jarret Woodward ("the Voters") filed this pro se election contest challenging the use of allegedly illegal electronic voting machines. Secretary of State Jane Nelson filed a plea to the jurisdiction, which the trial court denied. This interlocutory appeal followed.
To defeat a plea to the jurisdiction based on sovereign immunity, "a plaintiff must plead facts that, if true, establish a viable claim that is not barred by immunity."The Secretary argues the Voters' contest is not viable due to (1) one procedural defect, as the citation served on her office stated a return date different from that in the Texas Elections Code, which she asserts is an incurable jurisdictional defect that renders this contest moot because it was not corrected before the Governor certified the final canvass; and (2) two substantive defects, as the Voters lacked standing to assert their claims, and have not alleged facts showing that defective certificates of accreditation for the testing labs involved affected the outcome of the election. We hold the procedural ground does not render the Voters' claims unviable, but the substantive grounds do. We reverse and render judgment dismissing the case.
Perez v. Turner, 653 S.W.3d 191, 198 (Tex. 2022).
I. Background
Texas law permits the use of electronic voting systems, subject to approval by the Secretary of State. Specifically, the Secretary must certify that each system meets certain criteria. The Voters alleged that two types of electronic voting systems used in the election do not meet statutory requirements because the certificates of accreditation for the labs that tested them were signed by the wrong federal agency official. They also argued that the electronic voting systems violate the Texas Constitution's requirement that the legislature preserve the "purity of the ballot box." The Secretary raised procedural and substantive objections to the trial court's jurisdiction over these claims.
See TEX. ELEC. CODE § 122.031(a) (requiring approval of secretary of state before voting systems may be used in election).
See id. § 122.001(a) (setting forth standards).
TEX. CONST. art. VI, § 4.
II. The Procedural Claim: Mootness and the Defective Citation
The Secretary first asserts a "threshold problem" of procedure: a defect in the citation served on her office is a jurisdictional defect that rendered this contest moot, since it was not corrected before the final canvass certified the election results. We are not convinced.
In an election contest involving constitutional amendments, the "petition must be filed and service of citation on the secretary of state must be obtained before the final official canvass is completed." TEX. ELEC. CODE § 233.014(b). In the 2023 election on proposed amendments to the Texas Constitution, Governor Abbott certified the canvass on December 4, 2023. The Voters' filed their petition two weeks before that canvass, and the return of citation shows service on an authorized agent of the Secretary the next day. Yet in her plea to the jurisdiction filed December 5th, the Secretary asserted she was never served with proper citation because the citation stated an incorrect answer deadline.
The general deadline to answer civil actions in Texas is "the Monday next after the expiration of twenty days after the date of service thereof." TEX. R. CIV. P. 99(b). The Election Code shortens the deadline slightly for statewide election contests to "the 20th day after the date of service," not the first Monday after the 20th day following service. TEX. ELEC. CODE § 233.007(a)(2), (b). The citation here erroneously stated the general deadline (Monday next after 20 days after service) rather than the statutory deadline (20 days after service).
See also TEX. R. CIV. P. 15 (writs and processes), 117a(6) (tax suits), 606 (writ of attachment), 659 (garnishment).
There is no dispute this error was harmless. Though defective, the Secretary received the petition and citation "before the final official canvass [was] completed." Id. § 233.014(b). And before either deadline passed, she filed a plea to the jurisdiction challenging the form of the citation and other matters. Unless an incorrect return date printed on a citation form is a jurisdictional defect that renders it void, the Voters' contest was both filed and served before the actual deadline in the Election Code.
The Secretary argues the defect is jurisdictional, as "strict compliance with the rules governing citation" is required; otherwise "service is invalid." That rule applies to default judgments, but not to service of citation generally. Strict compliance with citation is required before a default judgment can be affirmed under a principle of offsetting derelictions:
See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) ("For well over a century, this court has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack.").
'[W]e rigidly enforce rules governing service when a default judgment is rendered because' the only ground supporting the judgment is that the defendant has failed to respond to the action in conformity with applicable procedure for doing so. If the defendant can then show that the person commencing the action was guilty of comparable nonconformity with procedural rules, under a principle of equality the derelictions offset each other and the merits of the controversy may be brought forward for consideration.
Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (quoting Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex 1990)); see also RESTATEMENT (SECOND) OF JUDGMENTS § 3 cmt. d (1982)).
A different procedural rule governs defects in service raised before judgment: "defects in the citation must be challenged by a motion to quash." Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985). Texas courts treat any motion asserting defects in service as a motion to quash, for which the "only relief is additional time to answer rather than dismissal of the cause." Id. at 202. Because this rule allows extra time to answer but does not allow for dismissal of the case, the inconsequential citation defect here is not an incurable error that renders the Voters' election contest moot or unviable.
See also Baker v. Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003); Gray v. PHI Res., Ltd., 710 S.W.2d 566, 567 (Tex. 1986) ("[P]etitioners did not file a motion to quash and therefore cannot now complain of the defects in the service of process and the lack of citation.").
We recognize that "[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity." TEX. GOV'T CODE § 311.034. But the citation form here was not a "prerequisite to a suit" - it was part of a statute addressing when the Secretary had to answer:
TEX. GOV'T CODE § 233.007. FILING PERIOD FOR ANSWER.
(a) A contestee must file an answer to the contestant's petition not later than:
(1) 10 a.m. of the 10th day after the date of service of citation on the contestee or 10 a.m. of the fifth day after the date the official result of the contested election is determined, whichever is later, if the contested election is less than statewide; or
(2) 10 a.m. of the 20th day after the date of service of citation, if the contested election is statewide.
(b) The citation must command the contestee to answer by the specified deadline.
This prerequisite was a command to the clerk, not the filing parties, as it is the duty of the clerk to prepare, sign, and issue citation. The Travis County District Clerk issued the defective citation here, based on a printed form that required filers to specify the type of service requested but not the date for its return. The only prerequisite for suit or provision for notice imposed by state statute on persons filing an election contest is to file and serve the Secretary "before the final official canvass is completed." TEX. GOV'T CODE § 233.014(b). The Voters complied with that requirement.
See TEX. R. CIV. P. 99(a) ("Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party."), 99(b) ("Form. The citation shall (1) be styled 'The State of Texas,' (2) be signed by the clerk under seal of court . . . [and] (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation[.]").
We agree that stating the correct deadline in a citation for an answer to an election contest is mandatory, but it is not jurisdictional. "A statute can be, and often is, mandatory without being jurisdictional." The Secretary was actually served with the citation, actually knew of the citation defect (which was cited it in her plea), and actually responded several days before the statutory deadline arrived. If such an error by a court clerk were jurisdictional, then election contests could be thwarted by unforced errors of a court employee. We overrule the procedural objection to jurisdiction.
Texas Windstorm Ins. Ass'n v. Pruski, 689 S.W.3d 887, 891 (Tex. 2024).
III. The Substantive Claims: Standing and Election Outcome
The Secretary also asserts that two substantive, incurable defects render the Voters' contest unviable: they lacked standing to bring the claims asserted and failed to allege facts supporting any difference their claims would have made. We agree on both counts, either one of which requires dismissal.
In their petition, the Voters allege the "overwhelming majority" of electronic voting systems in use "across the state of Texas" in the 2023 election (1) violated the constitutional right to a secret ballot, (2) violated section 129.054(a) of the Election Code because polling pads used to check in voters were connected to the internet, and (3) violated Section 122.001 of the Code because the certificates of accreditation for vendors that tested the voting machines were signed by the wrong person. As shown below, Texas courts have previously and repeatedly rejected similar or identical claims. We follow the same reasoning used by those courts, which we briefly summarize below.
In Andrade v. NAACP of Austin, the Texas Supreme Court held that to have standing, voters must allege that they suffered a "concrete, particularized harm" that is distinct from a "generalized grievance shared in substantially equal measure by all or a large class of citizens." Claims that electronic voting was "vulnerable to hackers, compromising vote secrecy" were insufficient because they applied to all voters rather than just the particular plaintiffs. Similarly, the Voters here impliedly concede their complaints allege generalized rather than particularized injury since they implicate the "overwhelming majority" of electronic voting systems "used across the state of Texas," Intermediate appellate courts in Texas have routinely concluded that individual voters lack standing to bring similar claims that apply generally to voters at large.
345 S.W.3d 1, 17 (Tex. 2011).
See id. The Court held the voters had standing to assert an equal protection claim that electronic voting made it less probable that their votes would be counted but rejected that claim on the merits. See id. at 7-14. No equal protection claim is asserted here.
Harvey v. Henry, 2024 WL 3875931, at *4-5 (Tex. App.-Houston [14th Dist.], Aug. 20, 2024, no pet.); Jones v. Stinson, 2023 WL 8946172, at *4 (Tex. App.-Dallas Dec. 28, 2023, no pet.); Vieira v. Hudman, 2023 WL 5623481, at *4 (Tex. App.-Houston [14th Dist.], Aug. 31, 2023, no pet.); Ramsey v. Miller, No. 2023 WL 3645468, at *3-4 (Tex. App.-Fort Worth, May 25, 2023, pet. denied).
Standing also requires an allegation of injury that is "actual or imminent, not conjectural or hypothetical." The Andrade court held that voters did not have standing to claim that electronic voting was "vulnerable to hackers, compromising vote secrecy" without any evidence that such had occurred. Texas courts have routinely held that fears that an electronic system might be compromised are not sufficient to establish standing. The Voters allege no facts suggesting that polling pads with access to the internet have ever compromised a Texas election.
Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696 (Tex. 2021).
See 345 S.W.3d at 15-16.
See Jones, 2023 WL 8946172, at *4; Ramsey, 2023 WL 3645468, at *4; Vieira, 2023 WL 5623481, at *4.
The Voters' most specific allegation-that the wrong person at a federal agency signed the certificates of accreditation for testing labs-was rejected by the Fourteenth Court of Appeals three months ago. As here, the voters alleged that a manual published by the federal Election Assistance Commission ("EAC") required that certificates of accreditation of labs that test voting machines were to be signed by the chair of the EAC rather than the executive director. The Fourteenth Court found, as do we, that this was a generalized grievance rather than a concrete, particularized injury. The Voters' petition here also concedes that, despite the alleged defect, the Commission had declared that the labs relied on by the Secretary here "remained in good standing with the requirements of our program and retained their accreditation."
See Harvey, 2024 WL 3875931, at *4.
Id. at *2.
Id. at *5.
The Voters argue they have statutory standing under Section 233.002 of the Election Code, which provides, "One or more qualified voters of the territory covered by an election on a measure may contest the election." While the legislature may confer standing by statute, it may not set a "lower standard" than "that set by the general doctrine of standing," because "courts' constitutional jurisdiction cannot be enlarged by statute." In other words, the requirement of a particularized harm that is actual or imminent is constitutionally required, because courts are limited to adjudicating real claims between real parties: "under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." That a voter "may bring" an election contest does not mean all of them may do so even if their interests are hypothetical or remote.
Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 582 n.83 (Tex. 2013).
Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973).
See Andrade, 345 S.W.3d at 17 (holding provision stating that "[a] person who is being harmed . . . is entitled to appropriate injunctive relief" in Section 273.081 of the Election Code "does not create standing" but "merely authorizes injunctive relief").
Finally, to allege a viable claim under the Election Code, the Voters had to allege facts that could support a claim that the true outcome would have been different if their claims were valid. TEX. ELEC. CODE § 221.003. They alleged it was impossible to do so, but do not explain why. The canvass in the record shows vote totals for all counties in Texas on each amendment, some of which used electronic voting systems and some of which did not. But the Voters did not compare them for any differences. The canvass also shows that 13 of the 14 proposed amendments passed, most of them with approval by over 60% of those voting. On this record, the Voters have not alleged facts demonstrating that their contest could have made any difference, or why it was impossible for them to do so.
IV. Conclusion
We reverse the district court's judgment and render judgment for the Secretary.