Steven Harvey v. Mark Henry, Galveston County Judge Darrell Apffel, Galveston County Commissioner Precinct 1.

Affirmed and Memorandum Opinion filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00280-CV

STEVEN HARVEY, Appellant
V.
MARK HENRY, GALVESTON COUNTY JUDGE; DARRELL APFFEL,
GALVESTON COUNTY COMMISSIONER PRECINCT 1; JOE GIUSTI,
GALVESTON COUNTY COMMISSIONER PRECINCT 2; STEPHEN D.
HOLMES, GALVESTON COUNTY COMMISSIONER PRECINCT 3;
ROBIN ARMSTRONG, GALVESTON COUNTY COMMISSIONER
PRECINCT 4; AND DWIGHT D. SULLIVAN, GALVESTON COUNTY
CLERK, Appellees

On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 22-CV-1495

MEMORANDUM OPINION

Steven Harvey appeals the trial court’s final order granting a plea to the
jurisdiction and dismissing of Harvey’s election law case against appellees Mark
Henry, Galveston County Judge; Darrell Apffel, Galveston County Commissioner
Precinct 1; Joe Giusti, Galveston County Commissioner Precinct 2; Stephen D.
Holmes, Galveston County Commissioner Precinct 3; Robin Armstrong, Galveston
County Commissioner Precinct 4; and Dwight D. Sullivan, Galveston County
Clerk. In his lawsuit, Harvey sought declaratory and injunctive relief based on his
allegations that appellees’ conduct has caused his votes in prior elections to be
rendered illegal and would cause his votes in future elections to be illegal. In two
issues, Harvey contends that the trial court failed to treat his petition as an
emergency petition and erred in granting the plea to the jurisdiction. We affirm.

Governing Law

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action
without regard to whether the claims asserted have merit. Bland I.S.D. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter
jurisdiction, which is essential to the authority of a court to decide a case. See Clint
I.S.D. v. Marquez, 487 S.W.3d 538, 558 (Tex. 2016); Bland I.S.D., 34 S.W.3d at
554. The existence of subject matter jurisdiction is a question of law that we
review de novo. See Wheelabrator Air Pollution Control, Inc. v. City of San
Antonio, 489 S.W.3d 448, 451 (Tex. 2016).

One component of subject matter jurisdiction that may be challenged in a
plea to the jurisdiction is standing, which is a prerequisite for maintaining suit. AB
Land Co. v. Sanders, No. 14-22-00932-CV, 2024 WL 2139610, at *3 (Tex. App.—
Houston [14th Dist.] May 14, 2024, no pet. h.). The standing inquiry “focuses on
whether a party has a sufficient relationship with the lawsuit so as to have a
‘justiciable interest’ in its outcome.” Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005). For a party to have standing to raise a claim, (1) the
party must have an injury in fact, i.e., a concrete and particularized injury that is
actual or imminent and not hypothetical; (2) the injury must be fairly traceable to

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the action complained of; and (3) the injury must be likely to be redressed by the
requested relief. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 155 (Tex.
2012).

A plea to the jurisdiction “may challenge the pleadings, the existence of
jurisdictional facts, or both.” Alamo Heights I.S.D. v. Clark, 544 S.W.3d 755, 770
(Tex. 2018). When a plea challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We
generally construe the pleadings liberally in favor of jurisdiction, take all factual
assertions as true, and look to the pleader’s intent. See Heckman, 369 S.W.3d at
150. When a plea challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties if necessary to resolve the jurisdictional
issues raised. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227
(Tex. 2004). In doing so, we take as true all evidence favorable to the nonmovant
and indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Id. at 228. If the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court should rule on the plea as a
matter of law, but if there is a disputed issue of jurisdictional fact that implicates
the merits, it must be reserved for the factfinder at trial. See id. This standard
generally mirrors that of a traditional summary judgment under Texas Rule of
Civil Procedure 166a(c). Id.

A plaintiff generally lacks standing to bring a lawsuit challenging the
lawfulness of governmental acts or to insist the government and its officials adhere
to the requirements of law based solely on their status as a citizen, voter, or
taxpayer. See Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011). “This is
because ‘[g]overnments cannot operate if every citizen who concludes that a public

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official has abused his discretion is granted the right to come into court and bring
such official’s public acts under judicial review.’” Andrade v. Venable, 372
S.W.3d 134, 136 (Tex. 2012) (quoting Bland I.S.D., 34 S.W.3d at 555). A plaintiff
generally must allege some injury distinct from that sustained by the public at
large. NAACP of Austin, 345 S.W.3d at 8; Ramsey v. Miller, No. 02-22-00412-CV,
2023 WL 3645468, at *3 (Tex. App.—Fort Worth May 25, 2023, pet. denied)
(mem. op.). To have standing in an equal protection, voting rights case, a plaintiff
must allege a concrete, personal, and legally cognizable injury, not just a claim that
the government should be administered according to governing law. NAACP of
Austin, 345 S.W.3d at 8–9.

Government officials acting in their official capacity enjoy the same
immunity as the governmental unit unless the official has engaged in ultra vires
acts. See Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011). While under
this framework, sovereign or governmental immunity does not bar a suit to
vindicate constitutional rights, immunity from suit is not waived if the
constitutional claims are invalid or unviable. See Klumb v. Hous. Mun. Emps.
Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015); Hous. Firefighters’ Relief & Ret.
Fund v. City of Hous., 579 S.W.3d 792, 800 (Tex. App.—Houston [14th Dist.]
2019, pet. denied).

Harvey’s Claims & Procedural History

From the outset, it is important to note the duality of the complaints that
Harvey makes in his petition.1 Harvey introduces his petition with the following
explanation: “This action is an action to bring transparency, fairness, honesty, and

1
Harvey has represented himself pro se in the trial court and in this appeal. Pro se
litigants and appellants are held to the same standards as licensed attorneys and must comply
with applicable laws and procedures. Rogers v. City of Houston, 627 S.W.3d 777, 786 (Tex.
App.—Houston [14th Dist.] 2021, no pet.).

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exemplary quality to Texas elections and to hold responsible those government
officials who violate the rights of Petitioner guaranteed by the U.S. and Texas
Constitutions.” He then goes on to allege that (1) for a variety of reasons,
electronic voting systems (“EVS”) (as opposed to paper ballots) are generally
untrustworthy and vulnerable to interference, and (2) his constitutional right to
vote was violated when appellees approved the use of an EVS for Galveston
County elections that had not been properly certified. On the latter point, Harvey
asserts that the testing laboratory that certified the adopted EVS was not properly
accredited because its certificate of accreditation was signed by the executive
director instead of the chairperson of the Election Assistance Commission
(“EAC”) and during a time period when the EAC lacked a governing quorum.
Harvey contends that such certification was thus not “in accordance with the
Voting System Test Laboratory Program Manual.”

Harvey alleges that appellees’ conduct violated and failed to comply with
numerous state and federal constitutional provisions, state and federal election
laws, and state and federal administrative rules.2 Harvey also complains at length
regarding actions of the Texas Secretary of State, who certified and approved the
adopted EVS for use by Galveston County, as well as other government officials
and bodies that were not made parties to this case. In citing the numerous state and
federal statutes and administrative rules, Harvey does not allege that any of them
provide for a private right of action. Instead, Harvey’s complaint is that the alleged
2
It is not necessary to list all of the many provisions that Harvey asserts were violated or
not complied with, but the list includes the First, Ninth, Fourteenth, and Fifteenth Amendments
to the United States Constitution; Texas Constitution Article I, sections 3, 13, 17, 19, and 29 and
Article VI, section 2; 18 U.S.C. section 245; 42 U.S.C sections 1983 and 1985; 52 U.S.C. section
10101; Texas Election Code sections 52.062, 122.01(3)(4), 122.031(c), 123.001, 123.002,
129.054(a), and 373.081; and Texas Penal Code sections 37.03, 37.09, and 37.10. U.S. Const.
amend. I, IX, XIV, XV; Tex. Const. art. I, §§ 3, 13, 17, 19, 29, art. VI, § 2; 18 U.S.C. § 245; 42
U.S.C § 1983, 1985; 52 U.S.C. § 10101; Tex. Elec. Code §§ 52.062, 122.01(3)(4), 122.031(c),
123.001, 123.002, 129.054(a), 373.081; Tex. Penal Code §§ 37.03, 37.09, 37.10.

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violations and failure to comply with these laws and rules governing the conduct of
elections impinged on his right to vote as protected by the United States and Texas
constitutions. As Harvey encapsulates in his response to appellees’ plea to the
jurisdiction, he alleges: “the Respondents approved, adopted, and purchased [EVS]
that do not comply with the legislative standards . . . therefore, causing the
nullification of [Harvey’s] vote during the elections since 2020.”

Among the relief Harvey seeks in his lawsuit, he requests that the trial court
(1) “vacate[] and set[] aside all uncertified and illegal voting systems/equipment,
software, and modifications used to unlawfully conduct elections”; (2) “implement
a precinct level hand-marked paper ballot and hand counting system”; (3) “grant[]
an emergency injunction prohibiting [appellees from] certifying the results from
the November 8, 2022 election”; (4) declare appellees have violated several
constitutional and statutory provisions; (5) “grant[] a permanent injunction
prohibiting [appellees] from requiring or permitting voters to have votes cast or
tabulated using any electronic voting systems, pollbooks, or devices”; (6) “grant[]
an emergency injunction prohibiting [appellees] destruction/deletion of any and all
election records . . . from the 2020, 2021, and 2022 elections”; (7) enjoin appellees
“from implementing and/or enforcing the certifications of all election results
derived from electronic voting systems/equipment, software and modifications that
are not in compliance with the applicable law”; (8) declare appellees’
“approvals/adoptions of all voting system/equipment, software, and modifications
are void and without legal force or effect”; and (9) order appellees “to terminate all
employees, agents, and contractors shown to have had knowledge of or acquiesced
in the improper acts described here.”

In their plea, appellees challenged both Harvey’s pleadings and his
jurisdictional facts. Among other arguments, appellees asserted that Harvey lacked

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standing, had “pleaded no factual support that his vote has been manipulated or
miscounted[, had] failed to show he has personally suffered any concrete and
particularized injury,” and had failed to establish that he has a viable cause of
action that would waive appellees’ immunity. Appellees further pointed out that
Harvey has acknowledged voting in past elections and has not alleged that his
votes have been rejected or otherwise uncounted. Appellees noted that Harvey’s
petition simply “makes conclusory allegations about his general distrust of, and
generalized grievances about, each and every electronic voting system throughout
the State” and “theorizes and speculates that future elections could hypothetically
be manipulated by third-party bad actors . . . without evidence” but “fails to
provide any factual allegations of actual injury.” Attached to appellees’ plea is a
letter from the Texas Secretary of State’s office stating approval for Galveston
County’s EVS contract with Hart InterCivic and confirming that the system was
certified for use in Texas. Also attached is a letter from the EAC stating that the
Hart InterCivic system had been approved.

In response to the plea, Harvey appeared to acknowledge that he needed to
plead a real, concrete, and particularized injury to have standing and repeated his
allegation that appellees’ approval of an EVS that was not certified by a properly
accredited testing laboratory caused his votes to be “effectively illegalized,”
thereby violating various provisions of the United States and Texas constitutions.
He further argued that approval of the EVS by the secretary of state did not absolve
county officials from a duty to only approve properly certified systems. In a
supplemental response, Harvey asserted that appellees had been informed that the
EVS in use in Galveston County had not been legally certified but that they
continued to use the EVS thus negating Harvey’s votes. Harvey did not explain
when, how, or by whom appellees had been so informed.

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At the hearing on the plea, appellees reemphasized that Harvey had alleged
and could prove no particularized injury, had no private right of action under any
of his cited statutes, and did not have a viable claim that could waive appellees’
immunity. The trial court admitted as exhibits the same two documents discussed
above that were attached to the plea itself—letters from the Texas Secretary of
State and the EAC approving Galveston County’s EVS contract with Hart
InterCivic and confirming that the system was certified and approved. In response,
Harvey argued that the EVS was actually not properly certified, and he offered into
evidence the accreditation certificate for a testing laboratory that expired in 2017.
Harvey claimed, without citing any evidence, that the 2017 certificate was the last
certificate for that particular testing laboratory before the 2020 election, which he
says means the laboratory was not accredited for the 2020 election cycle. The trial
court granted the plea and dismissed Harvey’s lawsuit with prejudice.

Analysis

There may be no right more sacred in a democracy than the right to vote.
See, e.g., Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious
in a free country than that of having a voice in the election of those who make the
laws under which, as good citizens, we must live. Other rights, even the most
basic, are illusory if the right to vote is undermined.”); NAACP of Austin, 345
S.W.3d at 12 (“The right to vote is fundamental, as it preserves all other rights.”)
(citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). Harvey alleges appellees
have infringed on his right to vote, and we take that allegation very seriously.
However, simply asserting that an important right is at stake does not alleviate a
party of demonstrating he has standing to assert the claims raised. Harvey has
failed to establish that he has standing or a viable claim for several reasons.

Generalized grievances. To begin with, while it is unclear if Harvey’s

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voluminous generalized complaints regarding the alleged untrustworthiness and
vulnerability of EVS were intended to state claims in themselves, to the extent
Harvey intended as much, these allegations “amount only to a generalized
grievance shared in substantially equal measure by all or a large class of citizens.”
NAACP of Austin, 345 S.W.3d at 15. As such, they do not demonstrate a concrete
and particularized injury that is actual or imminent and not hypothetical and do not
afford him standing. Id. at 15–18 (holding that plaintiffs pleading similar
allegations regarding EVS that did not produce a contemporaneous paper record
did not have standing); Heckman, 369 S.W.3d at 155 (requiring an actual or
imminent, concrete and particularized injury to demonstrate standing); see also
Ramsey, 2023 WL 3645468, at *4 (rejecting similar grievances regarding EVS in
part because such complaints amounted to “citizens . . . insist[ing] that the
government follow the law” without alleging disparate treatment or a
particularized injury) (quoting NAACP of Austin, 345 S.W.3d at 8). Such
complaints are better raised in the realm of politics and not in a courtroom. See
NAACP of Austin, 345 S.W.3d at 18. To the extent Harvey intended his generalized
grievances to constitute claims in this lawsuit, the district court was without
jurisdiction to consider them.

Equal protection. To the extent Harvey intended to raise an equal
protection claim based on the allegation that people required to use EVS are treated
differently than people who use paper ballots, he has not stated a viable claim. See
id. at 13 (holding similar equal protection challenge to paperless EVS was unviable
and quoting Weber v. Shelley, 347 F.3d 1101, 1106–07 (9th Cir. 2003) (“[I]t is the
job of democratically-elected representatives to weigh the pros and cons of various
balloting systems. So long as their choice is reasonable and neutral, it is free from
judicial second-guessing.”)); see also Klumb, 458 S.W.3d at 13 (explaining that an

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official’s immunity from suit is not waived if the constitutional claims are invalid
or unviable). As the court pointed out in NAACP of Austin, there are many benefits
to EVS over paper-only ballots and they do not impose severe restrictions on
voters. Id. at 12–14 (concluding that the adoption of EVS was “a reasonable,
nondiscriminatory choice . . . justified by the State’s important regulatory
interests” and discussing other cases coming to the same conclusion). In light of
the Texas Supreme Court’s holding in NAACP of Austin, Harvey has not presented
a viable case that he was unconstitutionally disadvantaged by voting on EVS
equipment rather than a paper ballot. 3

Concrete and particularized injury. As set out above, Harvey’s specific
claim of a concrete and particularized injury is based on the allegation that
appellees violated his constitutional rights when they approved an EVS for use in
Galveston County that was not properly certified. Specifically, Harvey asserts that
the EVS in question had been certified by a testing laboratory that was not properly
accredited because its certificate of accreditation was signed by the executive
director instead of the chairperson of the EAC and during a time period when the
EAC lacked a governing quorum. Harvey has likewise failed to establish standing
to bring this claim for several reasons.

To begin with, Harvey has not provided any support for his assertion that
appellees had a duty to ensure that the EVS they adopted was certified by a
properly accredited testing laboratory. The Election Code clearly places the
responsibility to ensure proper EVS certification squarely on the secretary of state,
not county officials. See Tex. Elec. Code §§ 122.031(a) (“Before a voting system

3
To the extent Harvey intended to support his equal protection claim with evidence, we
remain unpersuaded that his claim is viable. Much of Harvey’s supposed evidence consists of
citations to websites—many of dubious provenance—that contain allegations of problems and
potential problems with EVS but do not provide evidence reviewable in this case.

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or voting system equipment may be used in an election, the system and a unit of
the equipment must be approved by the secretary of state as provided by this
subchapter.”); 123.035 (“A contract for the acquisition of voting system equipment
. . . must be . . . approved by the secretary of state as to compliance of the voting
system and voting system equipment with the applicable requirements.”); see also
Ramsey, 2023 WL 3645468, at *4 (“Parker County plays no role in the
certification process; rather, this is the sole responsibility of the Texas Secretary of
State. . . . Thus, Appellants have failed to show a causal connection between Parker
County’s actions and the potential injury that they allege.”). Appellees presented
evidence along with their plea showing that the secretary of state had (1) provided
notice that the EVS in question was certified and (2) expressly approved of
Galveston County’s contract with the EVS provider. Harvey does not challenge
this evidence, and he did not sue the secretary of state in this case. He has not
demonstrated standing against appellees based on a testing laboratory’s alleged
lack of proper accreditation. See Heckman, 369 S.W.3d at 155 (requiring injury
traceable to the defendant’s conduct to demonstrate standing); Ramsey, 2023 WL
3645468, at *4.4

Next, Harvey has not established that the laboratory in question was not
properly certified. Harvey refers to a program manual published by the EAC for
use in its laboratory accreditation program for the contention that the laboratory’s
certificate must be signed by the EAC chairperson and that the EAC must have a
governing quorum at the time a certificate is signed. However, Harvey does not
make any attempt to show that statements in this 2015 manual had the force of law

4
In a supplemental response to the plea, Harvey additionally asserted that appellees were
informed that the EVS had not been legally certified but they continued to use them anyway.
Harvey neither alleges when, how, or by whom the alleged notification occurred nor provides
any evidence supporting the conclusory allegation or refuting appellees’ evidence that the EVS
were properly certified and approved.

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or reflected binding law. As appellees evidence showed, the EAC issued an
accreditation certificate for the testing laboratory and the Texas Secretary of State
confirmed the certification and approved the EVS in question for use in Texas.
Harvey has not demonstrated that those actions violated any laws, much less that
he can seek redress for any such violations by suing appellees.

Lastly, Harvey has offered no factual or legal support for his assertion that
his vote has been “effectively illegalized.” Even if Harvey had presented evidence
that the testing laboratory had not been properly accredited, he makes no cogent
argument and cites no law suggesting that the result would be that all votes cast in
Texas on EVS tested by that laboratory would be nullified. Harvey cites Election
Code section 276.013, regarding election fraud, but he does not explain how it
could apply to the facts he alleges. Tex. Elec. Code § 276.013. The provision
classifies certain offenses for purposes of punishment but does not itself provide
for vote nullification. See id. Harvey also cites Election Code section 1.0015 for
the proposition that illegal votes should not be counted, but that provision provides
no support for his contention that his vote was rendered illegal in any past election
or would be rendered illegal in any future election. Id. § 1.0015 (“It is the intent of
the legislature that the application of this code and the conduct of elections be
uniform and consistent throughout this state to reduce the likelihood of fraud in the
conduct of elections, protect the secrecy of the ballot, promote voter access, and
ensure that all legally cast ballots are counted.”). In short, Harvey has not
demonstrated a concrete and particularized injury that is actual or imminent and
not hypothetical, that is fairly traceable to appellees’ conduct, and which can be
redressed by the requested relief. See Heckman, 369 S.W.3d at 155.

Because Harvey has not shown that he has standing in this lawsuit or a
viable claim against appellees, the trial court did not err in granting the plea to the

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jurisdiction and dismissing Harvey’s claims. Accordingly, we overrule his two
issues.

We affirm the trial court’s final order.

/s/ Frances Bourliot
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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