United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED June 28, 2023 No. 21-20577 Lyle W. Cayce ____________ Clerk

Jillian Ostrewich,

Plaintiff—Appellant/Cross-Appellee,

versus

Clifford Tatum, in his official capacity as Harris County Elections Administrator; Jane Nelson, in her official capacity as Secretary of State of Texas; John Scott, in his official capacity as the Attorney General of Texas,

Defendants—Appellees/Cross-Appellants,

Kim Ogg, in her official capacity as Harris County District Attorney,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-715 ______________________________

Before Clement, Duncan, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: America’s “early elections were not a very pleasant spectacle” for voters. Burson v. Freeman, 504 U.S. 191, 202 (1992) (plurality opinion) (quotation omitted). Indeed, in the nineteenth century, polling places were Case: 21-20577 Document: 00516803616 Page: 2 Date Filed: 06/28/2023

No. 21-20577

often a place of bedlam: “Sham battles were frequently engaged in to keep away elderly and timid voters,” id. at 202, “[c]rowds would gather to heckle and harass voters who appeared to be supporting the other side,” and “[e]lectioneering of all kinds was permitted,” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1882–83 (2018). To facilitate more orderly voting, states came to institute a number of reforms, including restrictions on “election- day speech in the immediate vicinity of the polls.” Id. at 1883 (quotation omitted). “Today, all 50 states and the District of Columbia have laws curbing various forms of speech in and around polling places on Election Day.” Id. At issue in this case are three such Texas laws: Texas Election Code sections 61.003, 61.010, and 85.036 (collectively, the “electioneering laws”). Jillian Ostrewich filed this action, alleging that she was unconstitutionally censored under the electioneering laws when she voted in 2018 and that the statutes unconstitutionally “chilled” her right to free speech by criminalizing political expression within polling places. The district court, adopting the magistrate judge’s report and recommendation, upheld section 61.010 as constitutional, but concluded that sections 61.003 and 85.036 are facially unconstitutional under the First Amendment. Both sides appealed, contesting jurisdictional issues as well as the merits. Following Mansky, we hold that all three electioneering laws pass constitutional muster. I. A. Sections 61.003 and 85.036—which are near duplicates—prohibit “electioneering” near polling places. Section 61.003 states, in relevant part: (a) A person commits [a misdemeanor] offense if, during the voting period and within 100 feet of an outside door through

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