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REVISED, JANUARY 28, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 99-20757
___________________________
VOTING INTEGRITY PROJECT, INC., ET AL,
Plaintiffs-Appellants,
VERSUS
ELTON BOMER,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
___________________________________________________
January 17, 2000
Before DAVIS, JONES, and MAGILL1, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Plaintiffs, Voting Integrity Project, Inc. and several
individual Texas registered voters ("VIP"), appeal the district
court's order denying their motion for summary judgment and
granting defendant's cross motion for summary judgment. VIP
contends that three sections of the Texas Election Code, which
permit unrestricted early voting in federal elections, are
preempted by federal election statutes that require that the
"election" of members of Congress and presidential electors occur
1Circuit Judge of the Eighth Circuit, sitting by designation.

on federal election day. Because the election of federal officials
in Texas is not decided until Texas voters go to the polls on
federal election day, we conclude that the Texas early voting
scheme is not inconsistent with federal election laws.
I.
VIP filed this declaratory judgment action against Elton
Bomer, the Texas Secretary of State ("the State"). VIP challenges
Tex. Elec. Code งง 81.001, 82.005, and 85.001 ("the Texas Early
Voting statutes"), which allow voting to begin in Texas federal
elections seventeen days before federal election day. Unlike
traditional "absentee" voting statutes, the Texas Early Voting
statutes do not require the voter to give any reason to vote early;
the voter has the unrestricted right to vote early. Specifically,
VIP contends that these statutes violate 2 U.S.C. งง 1, 7 and 3
U.S.C. ง 1, which establish the Tuesday after the first Monday in
November as the day for the election of federal representatives,
senators, and presidential electors throughout the United States.
The parties filed cross-motions for summary judgment. The
district court found no conflict between Texas and federal law and
granted summary judgment in favor of the State. VIP now appeals.
II.
We review the granting and denial of summary judgment by the
district court de novo. Bodenheimer v. PPG Industries, Inc., 5
F.3d 955, 956 (5th Cir. 1993); Mozeke v. Int'l. Paper Co., 856 F.2d
722, 724 (5th Cir. 1988). We review the district court's denial of
a permanent injunction for abuse of discretion. Peaches
Entertainment Corp. v. Entertainment Repertoire Assocs., Inc., 62

F.3d 690, 693 (5th Cir. 1995).
III.
A.
The Elections Clause of the United States Constitution, Art.
I, ง 4, cl.1, gives states the responsibility for establishing the
time, place, and manner of holding congressional elections, unless
Congress acts to preempt state choices.2 Foster v. Love, 522 U.S.
67, 68, 118 S.Ct. 464, 466, 139 L.Ed.2d 369 (1997). States "are
given . . . a wide discretion in the formulation of a system for
the choice by the people of representatives in Congress." U.S. v.
Classic, 313 U.S. 299, 311, 61 S.Ct. 1031, 1035, 85 L.Ed. 1368
(1941). Thus, a state's discretion and flexibility in establishing
the time, place and manner of electing its federal representatives
has only one limitation: the state system cannot directly conflict
with federal election laws on the subject.
VIP contends that the Texas Early Voting statutes directly
conflict with the federal election statutes establishing a single
election day. 2 U.S.C. ง 7 provides that the "Tuesday next after
the 1st Monday in November, in every even numbered year, is
established as the day for the election, in each of the States . .
. of the United States, of Representatives and Delegates to the
Congress . . . ." Titles 2 U.S.C. ง 1 and 3 U.S.C. ง 1 provide the
2"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of choosing
Senators. U.S. Const., Art. I, ง 4, cl. 1.
3

same rule for electing Senators and presidential electors,
respectively.
VIP contends that the federal statutes, by establishing "the
day for the election," contemplate that the entire election,
including all voting, will occur that day. 2 U.S.C. ง 7(emphasis
added). They argue that "election" is synonymous with voting.
In Foster, the Supreme Court considered whether Louisiana's
"open primary" statute conflicted with federal election statutes.
522 U.S. at 70, 118 S.Ct. at 467. Under Louisiana law, an open
primary was held for congressional offices in October. Id. All
candidates, regardless of party, appeared on the same ballot. Id.
If any candidate received a majority of votes in the primary, he or
she was considered "elected" without any further action on federal
election day. Id. The Court held that Louisiana's open primary
system conflicted with federal election statutes because the "final
selection" of candidates could be (and often was)3 "concluded as a
matter of law before the federal election day, with no act in law
or in fact to take place on the date chosen by Congress . . . ."
Id. at 72, 118 S.Ct. at 467 (emphasis added).
Foster is instructive on the the meaning of "election." 522
U.S. at 68, 118 S.Ct. at 466. The Court observed first that the
term "election" in federal election statutes "plainly refer[s] to
the combined actions of voters and officials meant to make a final
3Since the adoption of the open primary system in 1978, eighty
percent of Louisiana's contested congressional elections ended with
the open primary, without any voting on federal election day.
Foster, 118 S.Ct. at 467.
4

selection of an officeholder." Id. at 71, 118 S.Ct. at 467. In
striking down Louisiana's open primary statute, the Supreme Court
held only that elections must not be "consummated" before federal
election day. Id. at 72, n.4, 118 S.Ct. at 468.
With this background we turn to the challenged Texas system.
Texas allows voting to begin early--seventeen days before federal
election day. But the polls are open on federal election day and
most voters cast their ballots that day. No election results are
released until the votes are tabulated on federal election day.
Because the election of federal representatives in Texas is
not decided or "consummated" before federal election day, the Texas
scheme is not inconsistent with the federal election statutes as
interpreted by the court in Foster.
VIP argues, however, that Foster does not control this case
because Foster was not concerned with voting that began too early
but rather with voting that ended too early, and its definition of
"election" was devised to resolve that dispute. For the reasons
that follow, we conclude that the Court would not alter its
definition of "election" to require that states begin their federal
election on federal election day.
First, the plain language of the statute does not require all
voting to occur on federal election day. All the statute requires
is that the election be held that day. Foster teaches us that
"election" means "the combined actions of voters and officials
meant to make a final selection of an office holder." 522 U.S at
71, 118 S.Ct. at 467. Allowing some voters to cast votes before
5

election day does not contravene the federal election statutes
because the final selection is not made before the federal election
day. Second, this conclusion is consistent with the Supreme
Court's refusal to give a hyper-technical meaning to "election"
and its refusal to "[pare] the term `election' in ง 7 down to the
definitional bone . . . ." Id. at 72, 118 S.Ct. at 467. We are
satisfied that our conclusion is consistent with a plain, common
sense reading of the language of ง 7, the same approach the Court
followed in Foster to interpret the statute.
Third, the Court in Foster recognized that some acts
pertaining to the election of federal officials would be performed
on days other than the federal election day in violation of ง 7:
While true that there is room for argument
about just what may constitute the final act
of selection within the meaning of the law,
our decision does not turn on any nicety in
isolating precisely what acts a State must
cause to be done on federal election day (and
not before it) in order to satisfy the
statute. Without paring the term "election"
in ง 7 down to the definitional bone, it is
enough to resolve this case to say that a
contested selection of candidates for a
congressional office that is concluded as a
matter of law before the federal election day
. . . clearly violates ง 7.
Id. (emphasis added).
We read the above language as a clear signal that contrary to
VIP's argument, some acts associated with the election may be
conducted before the federal election day without violating the
federal election statutes.
Further, we cannot logically hold that Texas' system of
unrestricted advanced voting violates federal law without also
6

finding that absentee balloting--which occurs in every state--
violates federal law.
We do not believe that Congress would have allowed absentee
balloting to occur under state laws if it attached the meaning to
the federal election day statutes urged by VIP. More than a
century ago, some states began to allow absentee voting, and all
states currently provide for it in some form, Edward B. Moreton,
Jr., Voting by Mail, 58 S.Cal. L. Rev. 1261, 1261-62 (1985); yet
Congress has taken no action to curb this established practice. We
are unable to read the federal election day statutes in a manner
that would prohibit such a universal, longstanding practice of
which Congress was obviously well aware.
More recent legislation buttresses our conclusion that
Congress looks with favor on absentee voting. Congress has enacted
at least three statutes authorizing absentee balloting before
election day.4 In the Voting Rights Act Amendments of 1970, 42
U.S.C. ง 1973aa-1, Congress emphasized the importance of access to
voting:
(a) The Congress hereby finds that the . . .
lack of sufficient opportunities for absentee
registration and
absentee balloting in
presidential elections (1) denies or abridges
the inherent constitutional right of citizens
to vote for their President and Vice-President
. . . .
Further, Congress has not only acknowledged but required
4The Voting Rights Act Amendments of 1970, 42 U.S.C. ง 1973aa-1;
the 1984 Voting Accessibility for the Elderly and Handicapped Act,
42 U.S.C. ง 1973ee et seq; and the Uniformed and Overseas Citizens
Absentee Voting Act of 1986, 42 U.S.C. ง 1973ff et seq.
7

absentee voting in certain circumstances. Sections 1973aa-1
(d),(e), (f) of the Voting Rights Act Amendments of 1970 require
that citizens be allowed to vote by absentee ballot in Presidential
elections on or before the day of the election.5 Title 42 U.S.C.
ง 1973ee-3(c) requires the chief election officer of each state to
"provide public notice, calculated to reach elderly and handicapped
voters, of . . . the procedures for voting by absentee ballot . .
. ." The Uniformed and Overseas Citizens Absentee Voting Act (the
"UOCAVA"), 42 U.S.C. ง 1973ff-1, requires states to accept absentee
ballots in federal elections from certain voters: "each State shall
- (1) permit absent uniformed services voters and overseas voters
to use absentee registration procedures and to vote by absentee
ballot in general, special, primary, and runoff elections for
Federal office . . . ."
B.
Finally, we cannot conceive that Congress intended the federal
election day statutes to have the effect of impeding citizens in
exercising their right to vote. The legislative history of the
statutes reflects Congress's concern that citizens be able to
exercise their right to vote. See CONG. GLOBE, 42d Cong., 2d Sess.
3407-3408 (1872). Also, the Texas early voting system does not
foster either of the primary evils identified by Congress as
5[E]ach State shall provide by law for the casting of absentee
ballots for the choice of electors for President and Vice
President...by all duly qualified residents of such State who may
be absent from their election district...on the day such election
is held...." 42 U.S.C. ง 1973aa-1(d).
8

reasons for passing the federal statutes: "distortion of the voting
process threatened when the results of an early federal election in
one State can influence later voting in other States, and . . . the
burden on citizens forced to turn out on two different election
days to make final selections of federal officers in presidential
election years . . . ." Foster, 522 U.S. at 73, 118 S.Ct. at 468.
The challenged Texas statutes encourage voting by providing Texas
voters with more opportunities to vote. Also, Texas law makes it
illegal for election officers to reveal any election results before
the polls close on election day. Tex. Elec. Code งง 61.007 &
81.002.
In short, the Texas Early Voting statutes further the
important federal objective of reducing the burden on citizens to
exercise their right to vote by allowing them to vote at a time
convenient to them, without thwarting other federal concerns.
IV.
For the above reasons, we conclude that Sections 81.001,
82.005, and 85.001 of the Texas Election Code are not preempted by
federal law. We therefore affirm the order of the district court.
AFFIRMED.
9