Partial Sovereign-Immunity Denials Are Immediately Appealable; Ex parte Young Turns on Concrete “Enforcement” Functions (Not Mere Referrals or General Oversight)

Case: La Union del Pueblo Entero; et al. v. Nelson (consolidated appeals)
Court: United States Court of Appeals for the Fifth Circuit
Date: December 31, 2025
Posture: Interlocutory appeal from denials of motions to dismiss (sovereign immunity and standing/traceability) in challenges to Texas S.B.1 (Election Protection and Integrity Act of 2021).

1. Introduction

This consolidated Fifth Circuit decision addresses threshold jurisdictional questions in multi-plaintiff litigation challenging numerous provisions of Texas’s omnibus election law, S.B.1. The plaintiffs—voter and civic organizations and individual voters—brought constitutional claims under 42 U.S.C. § 1983 (First, Fourteenth, and Fifteenth Amendments) and statutory claims under the Voting Rights Act (VRA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act.

The defendants relevant to this appeal are Texas’s Secretary of State (Jane Nelson) and Attorney General (Ken Paxton), sued in their official capacities. The key issues are:

• Appellate jurisdiction: whether the Fifth Circuit may hear an interlocutory appeal when sovereign immunity would dispose of only some (not all) claims.
• Ex parte Young applicability: whether the Secretary and Attorney General have a sufficient “connection to enforcement” of particular S.B.1 provisions to permit prospective relief notwithstanding sovereign immunity.
• Standing (traceability/redressability): whether plaintiffs’ alleged injuries are fairly traceable to these officials’ conduct for the § 1983 claims, given the overlap with the Ex parte Young analysis.

2. Summary of the Opinion

The Fifth Circuit holds that it has interlocutory jurisdiction to review denials of sovereign immunity even when immunity would not end the entire case, relying on Mi Familia Vota v. Ogg. It also exercises pendent appellate jurisdiction over the traceability/redressability aspects of standing for the § 1983 claims because those issues are “inextricably intertwined” with Ex parte Young.

On the merits, the court applies a provision-by-provision Ex parte Young analysis:

• Secretary of State: Ex parte Young applies (no sovereign immunity) for challenges to provisions where the Secretary directly implements statewide list-maintenance mechanisms (§§ 2.05, 2.06, 2.07) and where she prescribes mandatory forms/tools that operationalize requirements (e.g., mail-ballot applications and assistor rosters: §§ 4.12, 5.01, 5.02, 5.03, 5.08, 5.10, 5.13, 6.01, 6.03, 6.05, 6.07). Sovereign immunity bars § 1983 challenges to many other provisions (including early-voting site rules, ballot printing, ballot-verification processes, and provisions tied only to referrals or generalized oversight).
• Attorney General: Ex parte Young applies only to § 2.06, because it expressly authorizes the Attorney General to sue to recover civil penalties from counties. Sovereign immunity bars § 1983 challenges to the other provisions, largely because the Attorney General lacks independent criminal prosecutorial authority over election offenses after State v. Stephens, as recognized by the Fifth Circuit in Ostrewich v. Tatum.
• Standing: For the provisions surviving sovereign immunity, the court finds traceability/redressability satisfied, relying chiefly on Texas Democratic Party v. Abbott (form-design authority can be sufficiently causal/redressive) and OCA-Greater Houston v. Texas (facial invalidity of an election statute is traceable/redressable via the State and its chief election officer).

The judgment: affirmed in part, reversed in part, and vacated in part (operationally: many § 1983 claims against the Secretary and nearly all against the Attorney General are dismissed on sovereign-immunity grounds, except the enumerated provisions).

3. Analysis

3.1 Precedents Cited (and How They Drive the Result)

A. Collateral-order jurisdiction for sovereign-immunity denials

• Mi Familia Vota v. Ogg (5th Cir. 2024): Central to the jurisdictional holding. The court treats Ogg as establishing a categorical rule: a state defendant may immediately appeal a denial of sovereign immunity even if immunity would eliminate only some claims. The opinion reads Ogg as rejecting any “entire lawsuit” requirement.
• Planned Parenthood Gulf Coast, Inc. v. Phillips (5th Cir. 2022): Plaintiffs relied on its statement that jurisdiction existed because the Department asserted immunity from “the entire lawsuit.” This decision confines that language to the facts of that case and, following Ogg, denies it any limiting force.
• P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. (1993), Mitchell v. Forsyth (1985), Behrens v. Pelletier (1996): These Supreme Court cases anchor the collateral-order doctrine for immunity appeals. The Fifth Circuit emphasizes Behrens to analogize sovereign immunity to qualified immunity and to show partial-claim interlocutory review is permissible.
• Leonard v. Martin (5th Cir. 2022), Cohen v. Beneficial Indus. Loan Corp. (1949), Mohawk Indus., Inc. v. Carpenter (2009), Swint v. Chambers Cnty. Comm'n (1995), BancPass, Inc. v. Highway Toll Admin., L.L.C. (5th Cir. 2017): Used to restate the collateral-order requirements and limit the category of appealable interlocutory orders.

B. Pendent appellate jurisdiction over standing/traceability

• City of Austin v. Paxton (5th Cir. 2019) and Air Evac EMS, Inc. v. Tex., Dep't of Ins., Div. of Workers' Comp. (5th Cir. 2017): Provide the doctrinal bridge: Article III traceability and Ex parte Young enforcement “significantly overlap,” enabling pendent review when intertwined.
• Byrum v. Landreth (5th Cir. 2009): Supplies the Fifth Circuit’s formulation of pendent appellate jurisdiction where issues are “inextricably intertwined.”
• Mi Familia Vota v. Ogg (5th Cir. 2024): Distinguished; there the court declined pendent review of standing for statutory claims once immunity disposed of constitutional claims, and because standing was minimally briefed. Here, standing and immunity both address the same § 1983 claims and were thoroughly briefed.
• Uzuegbunam v. Preczewski (2021) and FDA v. All. for Hippocratic Med. (2024): Cited to frame the standing elements and the “flip sides of the same coin” relationship between causation and redressability.

C. Ex parte Young “some connection” and provision-by-provision enforcement

• Ex parte Young (1908): The source of the exception, requiring “some connection with the enforcement of the challenged act.” The court reiterates it must be applied “provision-by-provision” per later Fifth Circuit cases.
• Tex. All. for Retired Ams. v. Scott (TARA) (5th Cir. 2022), Mi Familia Vota v. Ogg (5th Cir. 2024), Tex. Democratic Party v. Abbott (TDP) (5th Cir. 2020): These cases function as the operational test suite. The opinion draws lines:
  • TDP: form-design duties can be enough for Ex parte Young (and for standing) because they can “compel or constrain” local officials.
  • TARA: general rulemaking/implementation authority does not equal enforcement; straight-ticket repeal enforced by local officials, not the Secretary.
  • Ogg: discretionary authority alone is insufficient; “may” is not “shall,” and mere investigatory capacity does not compel or constrain.
• Lewis v. Scott (5th Cir. 2022) and Richardson v. Flores (5th Cir. 2022): Used to reject Secretary-as-defendant theories where plaintiffs challenge local ballot-verification operations (signature review, defect curing) rather than state-prescribed forms.
• Ostrewich v. Tatum (5th Cir. 2023): Forecloses Attorney General-as-defendant theories premised on purported independent criminal prosecution authority; also rejects Secretary-as-defendant theories where her role is guidance/training and local officials have “absolute discretion” at the point of enforcement.
• State v. Stephens (Tex. Crim. App. 2021): The keystone for limiting the Attorney General’s election-crime authority; cited via Ostrewich to hold § 273.021(a) unconstitutional under Texas’s constitution as a grant of independent prosecutorial power.
• NiGen Biotech, L.L.C. v. Paxton (5th Cir. 2015): Supplies the “intimating that formal enforcement is on the horizon” standard for willingness-to-enforce, used to find willingness as to the Attorney General for § 2.06.
• Book People, Inc. v. Wong (5th Cir. 2024): Cited for the broader proposition that enforcement can include civil enforcement actions and that overlapping enforcement roles do not negate Ex parte Young.

D. Voting Rights Act abrogation

• OCA-Greater Hous. v. Texas (5th Cir. 2017): Dispositive to the VRA sovereign-immunity question; the opinion reiterates the VRA “validly abrogated state sovereign immunity.” Accordingly, the VRA claims are not barred regardless of Ex parte Young.
• Raj v. La. State Univ. (5th Cir. 2013): Reiterates that § 1983 does not abrogate sovereign immunity, forcing plaintiffs to rely on Ex parte Young for constitutional claims.

3.2 Legal Reasoning

A. Jurisdiction: the court treats partial immunity denials as categorically appealable

The court adopts a class-of-decisions approach: denials of state sovereign immunity fall within the collateral-order doctrine even when the appeal will not terminate the litigation. It grounds this in Mi Familia Vota v. Ogg and reinforces it by analogy to qualified immunity under Behrens v. Pelletier, emphasizing the Supreme Court’s insistence that appealability is determined for categories, not case-specific cost-benefit analyses.

B. Ex parte Young: “enforcement” is function-specific and tethered to statutory mechanics

The opinion formalizes a practical taxonomy of “enforcement,” sorting challenged provisions by what the Secretary or Attorney General actually does under Texas law:

• Direct operational duties that trigger downstream legal effects:
  • Secretary—voter roll mechanisms (§§ 2.05, 2.06, 2.07): The Secretary must create comparison systems, conduct periodic comparisons, notify registrars, and impose escalating sanctions on registrars. The court treats these as sufficiently “particular” and “compulsive” to qualify as enforcement.
• Mandatory form/tool prescription that constrains local administration:
  • Secretary—mail/early voting forms and assistor rosters (§§ 4.12, 5.01, 5.02, 5.03, 5.08, 5.10, 5.13, 6.01, 6.03, 6.05, 6.07): Building on TDP, the court reasons that where local authorities must use the Secretary’s official forms, her design choices “compel or constrain” local officials and materially structure the challenged requirements. This suffices even if other officials also play roles.
• Mere referrals, investigation, training, guidance, or generalized authority:
  • Secretary—referral provisions and crimes (e.g., §§ 2.08, 7.04 and related): The court holds referrals are “too attenuated” because the recipients (notably the Attorney General) lack independent prosecutorial authority after State v. Stephens, and prosecutors retain discretion. Thus, referrals do not amount to “compulsion or constraint.”
  • Secretary—ballot verification/defect cure operations (§§ 5.06, 5.07, 5.11, 5.12, 5.14, 6.04): Under Richardson v. Flores, these are local operational tasks requiring discretion, not Secretary enforcement.
  • Secretary—early voting sites and ballot printing/format rules (§§ 3.04, 3.09, 3.10, 3.12, 3.13, 3.15): Controlled by local officials under prior Fifth Circuit holdings (Mi Familia Vota v. Abbott, Texas Democratic Party v. Hughs, TARA).

For the Attorney General, the reasoning is even more direct:

• Attorney General is a proper Ex parte Young defendant only where the statute expressly grants civil enforcement authority:
  • § 2.06 expressly authorizes the Attorney General to sue to recover civil penalties. This is treated as classic enforcement authority, and the court finds sufficient “willingness” based on the Attorney General’s Election Integrity Unit announcement and related public indications.
• Attorney General is not a proper defendant for election-crime enforcement:
  • After Ostrewich v. Tatum (relying on State v. Stephens), the Attorney General cannot initiate election crime prosecutions unilaterally, so statutes purporting to grant that role cannot supply the Ex parte Young connection.
  • The opinion also declines to rest on § 8.01 civil-penalty provisions because the Attorney General disputed his authority (including in Paxton v. Longoria) and thus had not demonstrated willingness to enforce via that route.

C. Standing: traceability/redressability track Ex parte Young for the surviving § 1983 claims

The court confines standing review to traceability/redressability for the § 1983 claims and treats those requirements as satisfied whenever (and because) Ex parte Young’s enforcement-connection test is satisfied for the same provisions. It relies heavily on:

• TDP: form-prescription can “cause” the injury and can “redress it at least in part.”
• OCA-Greater Houston v. Texas: organizational diversion-of-resources injuries can be traceable to enforcement of election statutes by the State and its chief election officer.

3.3 Impact

• Expanded interlocutory review in complex public-law cases: By reaffirming Mi Familia Vota v. Ogg, the court strengthens states’ ability to obtain immediate appellate review of immunity denials even when other claims (e.g., VRA, ADA) remain. Practically, this invites earlier appellate sorting of proper defendants and claims, potentially narrowing discovery and merits litigation.
• Sharper functional boundaries for Ex parte Young defendants in election litigation: The decision confirms that Ex parte Young turns less on an official’s “chief election officer” status and more on concrete statutory levers:
  • “Form power” is enforcement power when local officials are required to use prescribed forms and those forms operationalize the challenged requirements.
  • “Referral power” is not enforcement power when the downstream actor lacks independent authority or retains discretionary charging power.
  • Implementation/rulemaking/guidance is generally insufficient when local officials exclusively administer the challenged conduct (polling place location, ballot printing, on-the-ground electioneering decisions).
• Attorney General limits after Stephens/Ostrewich: The opinion operationalizes Ostrewich v. Tatum as a broad limiter: unless Texas law clearly grants an independent civil enforcement role (as in § 2.06), the Attorney General will often be immune from § 1983 election-law challenges premised on criminal enforcement.
• Foreshadowed doctrinal pressure (Oldham concurrence/dissent): Judge Oldham’s separate writing attacks what he calls a Fifth Circuit “No Nexus Rule,” arguing Ex parte Young should require a tighter nexus between the defendant’s enforcement authority and the plaintiff’s injury. While not controlling, it signals ongoing intra-circuit skepticism that could influence future en banc developments—especially in statewide election challenges where enforcement is diffuse and local.

4. Complex Concepts Simplified

• Sovereign immunity (Eleventh Amendment immunity): A doctrine that generally prevents private plaintiffs from suing a state (or state officials acting as the state) in federal court.
• Ex parte Young exception: Allows suits for prospective injunctive or declaratory relief against a state official in their official capacity only if that official has “some connection” to enforcing the challenged law. The suit is treated as being against the official’s unlawful conduct, not the state itself.
• Collateral-order doctrine: A narrow exception to the “final judgment” rule that permits immediate appeal of certain important orders (like denial of immunity) that would be effectively unreviewable after final judgment.
• Pendent appellate jurisdiction: When an appellate court already has jurisdiction over an interlocutory appeal (here, sovereign immunity), it may also review closely connected issues (here, traceability/redressability standing) if they are “inextricably intertwined.”
• Standing—traceability and redressability: Traceability asks whether the defendant’s conduct fairly caused the plaintiff’s injury. Redressability asks whether a court order against the defendant is likely to remedy the injury (even partially).
• Provision-by-provision analysis: In sprawling statutory challenges, Ex parte Young (and related standing questions) are assessed separately for each statutory provision because different provisions assign enforcement to different officials.

5. Conclusion

La Union del Pueblo Entero v. Nelson reinforces two powerful procedural realities in Fifth Circuit public-law litigation. First, states may immediately appeal sovereign-immunity denials even when immunity would dispose of only part of a case, cementing Mi Familia Vota v. Ogg’s approach to collateral-order jurisdiction. Second, Ex parte Young is applied with a granular, function-based view of “enforcement”: the Secretary is amenable to suit where she directly operates voter-roll mechanisms or prescribes mandatory election forms that implement challenged requirements, but not where she merely advises, trains, refers, or where local officials exclusively administer the challenged conduct. For the Attorney General, the opinion—guided by Ostrewich v. Tatum and State v. Stephens—limits Ex parte Young mostly to expressly authorized civil enforcement (here, § 2.06).

The broader significance is structural: election-law challenges in the Fifth Circuit will increasingly turn on precise statutory allocations of administrative machinery (forms, tools, audits, penalty actions) rather than on high-level titles like “chief election officer,” and interlocutory appeals will remain a prominent vehicle for narrowing defendants and claims at the outset.