In an opinion that flatly contradicts a recent decision by the 15th Court of Appeals, the Fort Worth Court of Appeals has held that a small group of voters have standing to contest the outcome of a bond election.
Sharon P. Jorolan, Logan B. Young, Michelle Pique, Maurice F. Johnson, Patricia Erway, and Lincoln Achilli v. Andy Eads (No. 02-23-00338-CV; February 26, 2025) arose from a 2022 bond election authorizing the issuance of $650 million in general obligation bonds by Denton County for roads, bridges, and highways. Voters approved the bonds by a 3-1 margin, and the Denton County Clerk certified the results. A group of voters promptly filed an election contest against the county judge. They alleged that the electronic voting system for the election was not properly certified by the secretary of state and that the election result was therefore void as a matter of law. The judge filed a Rule 91a motion to dismiss and a plea to the jurisdiction, asserting that the voters lacked standing because they any concrete, particularized injury distinct from the public at large and that, in any event, the secretary of state had certified the voting machines. The trial court agreed and dismissed the suit for want of subject matter jurisdiction. The voters appealed.
In an opinion by Justice Birdwell, the court of appeals reversed. The voters argued that § 233.002, Election Code, confers standing to “qualified voters” to contest an election without showing a concrete, distinct injury. The judge took the opposite position. Taking up the standing issue, the court reviewed the applicable law adopted by SCOTX, which follows SCOTUS’s analysis for federal Article III standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130 (1992). The general rule holds that “[t]o maintain standing, a plaintiff must show: (1) an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the defendant’s challenged action; and (3) that it is likely, as opposed to merely speculative, that injury will be redressed by a favorable decision.” As the court noted, citizens lack standing to challenge the lawfulness of governmental acts barring either statutory standing or particularized injury distinct from the general public. Citing a line of Texas authority rejecting challenges to electronic voting systems,, the court distinguished the cases because none of them involved an election contest under § 233.002.
Looking to the language of the statute, the court observed that when the legislature confers standing by statute, the question becomes “upon whom the [legislature] conferred standing and whether the claimant falls in that category” (citations omitted). But as Justice Birdwell stated, “[w]e may not, however, interpret the conferring statute to lower the standard for standing below the common-law or constitutional threshold by enlarging the jurisdiction of Texas courts beyond that conferred by constitutional authority” (citations omitted). The court pointed to a recent 15th Court of Appeals holding that “Section 233.002 could not enlarge the constitutional authority of the district courts to adjudicate election contests by exempting ‘qualified voters’ from the constitutional imperative of a concrete, particularized injury distinct from the public at large.” No. 15-24-00037-CV, 2024 WL 4886621, at •4 (Tex. App.—Austin [15th Dist.] Nov. 26, 2024, pet. filed) (mem. op.) (finding that plaintiffs lacked standing to contest the results of a statewide election approving constitutional amendments on the grounds that the electronic voting systems employed were not properly certified by the secretary of state).
Nevertheless, Article V, Section 8, Texas Constitution (adopted in 1891), specifically confers jurisdiction to district courts to adjudicate contested elections. In De Shazo v. Webb, 113 S.W.2d 519 (Tex. 1938), SCOTX ruled that this section “authorized the legislature to grant standing or ‘capacity’ to citizen contestants, including residents and qualified voters, without a showing of a justiciable interest in the outcome of the election, i.e., a concrete, particularized distinct from the public at large.” The court’s opinion focused on the essentially “legislative” function of election contests in the context of fraudulent elections. Relying on De Shazo, the language of § 233.002, and the voters’ status as “qualified voters” in Denton County, the court held that the voters didn’t need a concrete injury to maintain standing to contest the bond eletion. The court reversed and remanded for a proceeding on the merits.
It looks like we have opinions in conflict over a voting machine-based challenge. From our perspective, the secretary of state certification issue may be something of a red herring because even if the secretary of state certifies voting machines, disgruntled voters could presumably challenge the validity of the certification. If every bond election that goes the wrong way for a handful of voters (remember, in this case voters approved the bonds with nearly 75 percent of the vote) can be contested on what will probably turn out to be groundless objections to the accuracy of voting machines, our courts will find themselves smack in the middle of political and policy controversies that they probably don’t want any part of. Maybe the court felt that it couldn’t get around § 233.002 and that, if this turns out to be a floodgate-opening decision, the Legislature will step in and modify the law. We’ll see whether SCOTX takes the case from the 15th Court, as well as whether the Denton County judge takes this decision to a higher level.
