Partial Sovereign-Immunity Denials Are Immediately Appealable; Ex parte Young Turns on Specific Statutory Enforcement (Not Referrals or General Oversight)

1. Introduction

This interlocutory appeal arises from consolidated challenges to Texas’s Election Protection and Integrity Act of 2021 (S.B.1), an omnibus election law enacted after the 2020 election. Multiple plaintiff coalitions—including civic organizations and individual voters—brought constitutional and statutory claims targeting dozens of S.B.1 provisions affecting voter registration maintenance, early voting, vote-by-mail procedures, poll watching, and voter assistance.

The defendants relevant to this appeal are Texas Secretary of State Jane Nelson and Texas Attorney General Ken Paxton (both sued in their official capacities), who moved to dismiss on sovereign-immunity and standing grounds. Because the district court denied parts of those motions, the state officials pursued an interlocutory appeal.

The Fifth Circuit’s key questions were jurisdictional and structural rather than merits-based: (i) whether the court had interlocutory jurisdiction under the collateral-order doctrine even though some claims (e.g., Voting Rights Act claims) indisputably remained; (ii) whether Ex parte Young stripped sovereign immunity for particular challenged provisions; and (iii) whether plaintiffs’ § 1983 injuries were traceable to (and redressable by) these state officials.

2. Summary of the Opinion

The Fifth Circuit held it had interlocutory jurisdiction and then conducted a provision-by-provision Ex parte Young analysis. The court largely narrowed who can be sued for enforcing S.B.1’s provisions:

• Collateral-order jurisdiction exists even when a sovereign-immunity ruling would not dispose of the entire lawsuit (relying on Mi Familia Vota v. Ogg).
• Secretary of State: not immune (proper Ex parte Young defendant) only for provisions where the Secretary has a concrete, statutory enforcement role—especially voter-roll comparison/sanction duties and mandatory form-prescription duties; immune for many other provisions, including election-crime provisions, referral provisions, and early-voting site/ballot-printing rules largely administered by local officials.
• Attorney General: proper Ex parte Young defendant only for S.B.1 § 2.06, which expressly authorizes civil-penalty actions by the Attorney General; otherwise immune for the remaining challenged provisions because Texas law (as construed in State v. Stephens and applied in Ostrewich v. Tatum) denies the Attorney General independent criminal-prosecution authority for election offenses.
• Standing (traceability/redressability): for the surviving § 1983 challenges, plaintiffs satisfied traceability and redressability because the Secretary’s and (for § 2.06) the Attorney General’s statutory duties contributed to the alleged injury and could partially redress it, consistent with Tex. Democratic Party v. Abbott (TDP) and OCA-Greater Hous. v. Texas.

3. Analysis

3.1 Precedents Cited

The opinion is precedent-driven, using prior Fifth Circuit doctrine to map the boundary between (a) “general supervisory responsibility” and (b) a sufficiently concrete enforcement connection for Ex parte Young and, in parallel, for standing traceability.

A. Appellate jurisdiction and the collateral-order doctrine

• Mi Familia Vota v. Ogg: The controlling authority for jurisdiction. The panel treated Ogg as establishing a class-wide rule: a state may take an interlocutory appeal from a denial of sovereign immunity even if immunity would dispose of only some claims. It also informed the court’s “guideposts” for enforcement connection under Ex parte Young.
• Planned Parenthood Gulf Coast, Inc. v. Phillips: Plaintiffs invoked its “entire lawsuit” phrasing to argue interlocutory jurisdiction requires immunity from all claims. The court—following Ogg—read that language as not creating a strict “complete immunity” requirement.
• P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. and Mitchell v. Forsyth: Provide the foundational collateral-order principle that denials of immunity are effectively unreviewable after final judgment.
• Behrens v. Pelletier: Used by analogy (qualified immunity) to support interlocutory review even when fewer than all claims are at issue.
• Cohen v. Beneficial Indus. Loan Corp., Mohawk Indus., Inc. v. Carpenter, and Swint v. Chambers Cnty. Comm'n: Frame the collateral-order doctrine’s contours and the “classes of decisions” approach.

B. Ex parte Young and enforcement-connection doctrine

• Ex parte Young: The basic rule: sovereign immunity does not bar suits for prospective relief against state officials with “some connection” to enforcement. The Fifth Circuit emphasized its own provision-by-provision approach.
• City of Austin v. Paxton and Air Evac EMS, Inc. v. Tex., Dep't of Ins., Div. of Workers' Comp.: Major interpretive anchors for what counts as “enforcement” beyond direct prosecution, and how “connection” can be satisfied by regulatory compulsion.
• Tex. Democratic Party v. Abbott (TDP): Central to the court’s holding that the Secretary’s duty to design/prescribe official election forms can “compel or constrain” local officials and thus amounts to enforcement for Ex parte Young and traceability for standing.
• Lewis v. Scott and Richardson v. Flores: Provide the limiting principle: where plaintiffs challenge how local officials administer ballot verification or other local processes, and the Secretary’s form-related authority “has nothing to do with enforcing” the specific challenged rule, the Secretary is not a proper Young defendant.
• Mi Familia Vota v. Abbott, Tex. Democratic Party v. Hughs, and Tex. All. for Retired Ams. v. Scott (TARA): Used to reject Secretary-as-defendant theories for early voting site decisions, ballot printing/distribution, and straight-ticket voting changes—areas assigned to local administration.
• Ostrewich v. Tatum: A decisive constraint on Attorney General enforcement theories post-briefing, because it applied State v. Stephens to hold the Texas Attorney General lacks independent authority to prosecute election crimes.
• State v. Stephens: The key state-law predicate. The court treated it as dispositive of arguments that Texas Election Code § 273.021(a) makes the Attorney General an election-crime enforcer for Young purposes.
• Paxton v. Longoria and Smith v. State: Cited to highlight uncertainty and the Attorney General’s own position about civil-enforcement authority under S.B.1 § 8.01 (and the need for a clear statement). This reinforced the court’s conclusion that the Attorney General had not shown willingness to enforce § 8.01.
• NiGen Biotech, L.L.C. v. Paxton: Cited for the idea that a sufficiently concrete signal can “intimat[e] that formal enforcement [is] on the horizon,” used here to support willingness to enforce § 2.06.

C. Standing and pendent appellate jurisdiction

• Byrum v. Landreth: Supplies the “inextricably intertwined” test for pendent appellate jurisdiction, allowing the court to review traceability/redressability for § 1983 claims alongside sovereign immunity.
• Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. and Lujan v. Defenders of Wildlife: Restate injury, traceability, and redressability.
• Uzuegbunam v. Preczewski and FDA v. All. for Hippocratic Med.: Used to emphasize the court’s narrow reach here (traceability/redressability only) and the conceptual overlap between causation and redressability.
• OCA-Greater Hous. v. Texas: A key standing precedent: organizational burdens and diversion of resources can be traceable to statewide election statutes and redressable by the Secretary as “chief election officer.”

3.2 Legal Reasoning

A. A clarified jurisdictional rule: partial immunity denials are immediately appealable

The court treated Mi Familia Vota v. Ogg as establishing a categorical rule: when state defendants are denied sovereign immunity as to any claims, they may pursue an interlocutory appeal under the collateral-order doctrine even if other claims remain (such as VRA claims, where abrogation is conceded). The court rejected attempts to confine interlocutory review to cases where immunity would end the “entire lawsuit.”

B. Provision-by-provision enforcement: who actually “enforces” S.B.1?

Applying a provision-by-provision method, the court asked whether the Secretary or Attorney General had the kind of enforcement connection that satisfies Ex parte Young. It relied on guideposts articulated in its case law (including Mi Familia Vota v. Ogg and TARA): (1) more than a generalized duty, i.e., a particular duty to enforce; (2) demonstrated willingness through affirmative acts; and (3) compulsion/constraint.

Two reasoning moves are particularly consequential:

• Form-prescription equals enforcement—sometimes. Following Tex. Democratic Party v. Abbott (TDP), the Secretary’s statutory obligation to prescribe official election forms and tools can “compel or constrain local officials,” creating the requisite enforcement connection. But Lewis v. Scott and Richardson v. Flores limit this where the challenged policy is administered through local discretionary processes not governed by the Secretary’s form content.
• Referrals and “audit/investigate” functions are not enforcement if the recipient cannot prosecute. The court held the Secretary’s referral authority (including under S.B.1 § 2.08 and Texas Election Code § 34.005(a)) was too attenuated to qualify as enforcement, especially because the Attorney General lacks independent election-crime prosecutorial power under State v. Stephens as applied in Ostrewich v. Tatum.

C. Standing traceability/redressability tracks the same enforcement logic

On pendent appellate jurisdiction, the court held it could review traceability/redressability for the surviving § 1983 claims because those issues were “inextricably intertwined” with the Ex parte Young question. Applying TDP and OCA-Greater Hous. v. Texas, it found traceability and redressability satisfied where the Secretary (or for § 2.06, the Attorney General) had a statutory role that contributed to the alleged harms and could provide at least partial relief through injunctive/declaratory remedies.

3.3 Impact

The decision’s likely effects extend beyond S.B.1 litigation:

• More interlocutory appeals in immunity-heavy public-law cases. By treating partial denials of sovereign immunity as immediately appealable, the court increases early appellate review and may slow merits adjudication in complex multi-claim challenges.
• Narrowed set of proper statewide defendants in Texas election cases. Plaintiffs challenging local administration choices (polling place location, ballot printing, discretionary verification/cure decisions) will face stronger arguments that statewide officials are not proper Young defendants—pushing suits toward local officials or alternative statutory causes of action.
• Reinforced separation between criminal enforcement and civil/administrative enforcement in Texas elections. Post-State v. Stephens, the Attorney General’s criminal-prosecution theories are significantly constrained; only express civil-penalty authority (as in § 2.06) meaningfully supports an Ex parte Young path.
• Strategic emphasis on the Voting Rights Act. Because the court reiterated that the VRA “validly abrogated state sovereign immunity” (citing OCA-Greater Hous. v. Texas), VRA claims remain a primary avenue for statewide relief when § 1983 paths are blocked by defendant-selection limits.

4. Complex Concepts Simplified

• Sovereign immunity (Eleventh Amendment immunity): States and state officials (when sued in their official capacities) are generally immune from private lawsuits in federal court unless immunity is waived, validly abrogated by Congress, or avoided through a doctrine like Ex parte Young.
• Ex parte Young exception: A plaintiff can sue a state officer for prospective injunctive/declaratory relief if the officer has “some connection” to enforcing the challenged law. In the Fifth Circuit’s framework, that often requires a specific enforcement duty (not just general oversight) and some indication of willingness to use it.
• Collateral-order doctrine: A narrow exception to the “final judgment” rule. Some orders—like denials of sovereign immunity—are treated as immediately appealable because waiting until final judgment would defeat the point of immunity (an immunity from suit, not just liability).
• Pendent appellate jurisdiction: When an appealable issue is properly before the appellate court, the court may also review closely related non-appealable issues if they are “inextricably intertwined.” Here, traceability/redressability was treated as intertwined with Ex parte Young.
• Standing (traceability/redressability): Even if plaintiffs are injured, they must show the injury is fairly traceable to the defendant (not just to the statute in the abstract) and that a court order against that defendant will likely (even partially) redress the injury.

5. Conclusion

OCA-Greater Houston v. Nelson substantially tightens the defendant-selection rules for § 1983 election-law challenges in the Fifth Circuit, while simultaneously broadening the availability of interlocutory appellate review when sovereign immunity is denied—even partially.

On the merits-adjacent structural question of who may be sued, the court drew a sharp line: statewide officials are proper Ex parte Young defendants only where they have a concrete, statutory enforcement role (such as mandatory form prescription or express civil-penalty authority), not where their involvement is limited to general supervision, interpretive guidance, or referral of suspected violations to actors who lack independent prosecutorial power.