           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          January 9, 2008

                                       No. 06-41573                   Charles R. Fulbruge III
                                                                              Clerk

WILLIE RAY; JAMILLAH JOHNSON; GLORIA MEEKS; REBECCA
MINNEWEATHER; PARTHENIA MCDONALD; WALTER HINOJOSA;
TEXAS DEMOCRATIC PARTY

                                                  Plaintiffs-Appellees
v.

GREG ABBOTT, Attorney General of the State of Texas; PHIL WILSON,
Secretary of State for the State of Texas

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:06-CV-385


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       At issue is a preliminary injunction against enforcement of § 86.006(f) and
(h) of the Texas Election Code, concerning the return of early-voting-by-mail
ballots. VACATED and REMANDED.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-41573

                                         I.
      In September 2006, persons associated with the Democratic Party and the
Texas Democratic Party filed this action against the State of Texas and its
Attorney General and Secretary of State, challenging several provisions of the
Texas Election Code: §§ 64.036(a)(4), 84.004, 86.0051, and 86.006, as amended
in 2003. These provisions establish several requirements for early voting-by-
mail. Plaintiffs maintain the purpose and effect of these provisions, and their
application and enforcement by the State, unduly burden voting, free-speech,
and associational rights in violation of the First, Fourteenth, and Fifteenth
Amendments to the United States Constitution, as well as the Voting Rights Act
(VRA).    Plaintiffs also assert enactment and enforcement of the 2003
Amendments violate their constitutional rights of equal protection and due
process of law.
      In October 2006, Plaintiffs moved for a preliminary injunction against
enforcement of the challenged provisions “in advance of the 2006 election”. The
State filed joint motions seeking dismissal for lack of subject-matter jurisdiction,
improper venue, and failure to state a claim.
      A hearing was held on 30 October 2006, during which the scope of
requested injunctive relief was narrowed by Plaintiffs to limit enforcement only
of § 86.006 against persons who mail the ballot of another. Section 86.006
regulates the method for returning early-voting ballots and criminalizes, with
exceptions, the “knowing[] possess[ion of] an official ballot or official carrier
envelope provided . . . to another”. TEX. ELEC. CODE ANN. § 86.006(f).
      The following day, the court preliminarily enjoined enforcement of §§
86.006(f) and (h) for “circumstances in which a person, other than the voter, has
merely possessed the official ballot or official carrier envelope and such
possession is with the actual consent of the voter”.         The State appealed,



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                                       No. 06-41573

simultaneously moving to stay the injunction pending, and requesting expedited
consideration of, the appeal.
       On 3 November 2006, our court stayed the injunction, but refused to
expedite. Plaintiffs’ request to the Supreme Court to vacate the stay was denied
the next day.
       Section 86.006 was amended in May 2007, after the parties’ opening briefs
were filed. Although the State briefed the amendment in its reply, Plaintiffs did
not seek leave to file a sur-reply regarding this development. For the first time
at oral argument, in its rebuttal, the State proposed modifying the mail-in ballot
and carrier envelope form. Accordingly, we required supplemental briefing on
that issue. The State, both at oral argument and in its letter brief, asserted that
the modified forms correct any deficiencies perceived by the district court.
Plaintiffs, in their letter brief, contended that the 2007 amendment and the
proposed modified forms do not constitute a sufficient constitutional remedy.
                                              II.
       The parties’ delay in proceeding to trial is regrettable. Neither the appeal
from the preliminary injunction, nor our order staying it, stayed proceedings in
district court. In sum, this litigation has been at a standstill. We are advised,
however, that a status conference has been scheduled for early 2008.
       In any event, the parties have brought to light new evidence not in the
record on appeal and, therefore, not before the district court when it entered the
injunction. In the light of the recent amendment to § 86.006, proposed changes
to the forms, assurances by the State that the revised forms cure any
constitutional problems, the State’s advising it will submit the changes to the
ballot materials for preclearance under the VRA, and Plaintiffs’ contentions to
the contrary, the district court should be allowed to reconsider its ruling.1


       1
          The State also challenges whether Plaintiffs have standing to seek relief under 42
U.S.C. § 1971 (prohibiting denial of voting rights by state agents based on errors or omissions

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                                         No. 06-41573

                                               III.
       For the foregoing reasons, the preliminary injunction is VACATED, and
this matter is REMANDED to district court for further proceedings. In the light
of the November 2008 elections, we are confident this action will be resolved well
in advance of them.
       VACATED and REMANDED.




immaterial to voter qualification). In granting the preliminary injunction, the district court
ruled purely on constitutional grounds, making our review of the § 1971 issue premature.
Along that same line, the State challenges whether the district court should have dismissed
certain plaintiffs under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994) (requiring
dismissal of 42 U.S.C. § 1983 complaint when, if successful, would necessarily imply the
invalidity of a plaintiff's conviction). Because this contention goes solely to the issue of venue,
it is not inextricably intertwined with the merits of the district court's ruling. Therefore, a
review of that issue is unnecessary to ensure meaningful review of the injunction. Swint v.
Chambers County Comm'n, 514 U.S. 35, 50-51 (1995).

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