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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 15, 2023
No. 22-50536 Lyle W. Cayce
____________ Clerk
Vote.Org,
Plaintiff—Appellee,
versus
Jacquelyn Callanen; Et al.,
Defendants,
versus
Ken Paxton, In His Official Capacity as the Attorney General of Texas;
Lupe C. Torres, In His Official Capacity as the Medina County Elections
Administrator; Terrie Pendley, In Her Official Capacity as the Real
County Tax Assessor-Collector,
Intervenor Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-649
______________________________
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A non-profit organization whose stated mission is to simplify voting
brought suit against four county election officials in Texas. It alleged that a
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Texas law requiring an original signature on a voter registration form violates
the Civil Rights Act of 1964 and the First and Fourteenth Amendments’ ban
on imposing undue burdens on the right to vote. The Texas requirement
frustrated use of the organization’s smartphone app that allows for digitized
signatures only. The Attorney General of Texas intervened and has been the
party actively defending the law. The district court granted summary
judgment in favor of the organization. We REVERSE and RENDER.
FACTUAL AND PROCEDURAL BACKGROUND
As is standard in the United States, an individual in Texas must
register to vote before casting a ballot. To register, applicants “must submit
an application to the registrar of the county in which the person resides.”
TEX. ELEC. CODE § 13.002(a). That “application must be in writing and
signed by the applicant.” § 13.002(b).
The application form is available both online and at government
offices designated as “voter registration agencies,” such as the Department
of Public Safety and public libraries. §§ 20.001, 20.031. The Secretary of
State and county registrars will also, upon request, mail applicants a postagepaid application form.
Texans have several ways to submit their applications. They can
submit the application by personal delivery or United States mail directly to
the county registrar. § 13.002(a). Voter registration agencies are also
required to accept registration applications and deliver them to the county
registrar. §§ 20.001, 20.035. Moreover, counties may appoint “volunteer
deputy registrars” to distribute and accept applications on the county
registrar’s behalf. §§ 13.031, 13.038, 13.041. If an applicant submits an
incomplete voter registration application, then the county registrar will notify
the applicant and allow ten days to cure the deficiency. § 13.073.
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Once an application form is received, the county registrar reviews it
to ensure the necessary information, including a signature, is present. Upon
confirming completeness of the form, registrars generally scan or enter the
applicants’ information in their computer system and save images of the
signatures. Some counties then destroy the original applications. The
applicants’ information is electronically transmitted to the office of the Texas
Secretary of State. The Secretary’s office processes these applications if the
essential information — such as a person’s last name, date of birth, and social
security number — is accurate.
In 2013, the Texas Legislature enacted Senate Bill 910, which allows
individuals to transmit voter registration forms by facsimile, i.e., a fax, if they
then, within four days, deliver or mail a hardcopy of the application.
§§ 13.002(a), 13.143(d-2). When applicants use this method, the effective
date of registration is the day of the fax transmissions. § 13.143(d)(2).
The plaintiff, Vote.org, developed a smartphone application, or
“app,” that it argues allows Texans to satisfy all enforceable voter
registration requirements online. In an earlier decision that granted a stay of
the district court’s injunction, this court described Vote.org as “a non-profit,
non-membership organization that seeks to simplify and streamline political
engagement by, for example, facilitating voter registration.” Vote.Org v.
Callanen, 39 F.4th 297, 301 (5th Cir. 2022). The organization works to
support low-propensity voters, including racial and ethnic minorities and
younger voters. The app prompts applicants for information and auto-fills it
onto the voter registration form. To sign the form, applicants sign a piece of
paper, take a photo of it, and upload the photo to the app. The app then
affixes the signature onto the registration form and transmits the form to two
third-party vendors: one that sends the form to the county registrar via fax
and another that mails a paper copy of the application to the county registrar.
Id. at 301.
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In 2018, Vote.org began its registration efforts in Bexar, Cameron,
Dallas, and Travis counties. Id. at 301. After some technical problems were
resolved, over 2,000 Texans registered to vote using the app. In October
2018, the Texas Secretary of State issued a press release stating that “[a]ny
web site that misleadingly claims to assist voters in registering to vote online
by simply submitting a digital signature is not authorized to do so.” After
this statement, Vote.org shut off its app.
In mid-June 2021, the Texas Governor signed House Bill 3107, which
clarified that applicants using the fax option must subsequently mail a paper
application to the registrar that “contain[s] the voter’s original signature.”
§ 13.143(d-2). The parties refer to this as the “Wet Signature Rule,” and we
also will at times even though “original signature” seems clear enough. The
Secretary’s Rule 30(b)(6) designee explained in his deposition that the
impetus behind the 2021 statute was “Vote.org’s misreading of [the
signature requirement] in 2018.”
In July 2021, Vote.org sued voter registrars in four counties under 42
U.S.C. § 1983, seeking to enjoin Section 13.143(d-2)’s signature requirement.
Vote.org alleged a violation of federal rights established in the Civil Rights
Act of 1964, specifically that the right to vote shall not be denied due to
immaterial errors or omissions on any record relating to registration or other
voting requirements.
52 U.S.C. § 10101(a)(2). 1 Also alleged was that
_____________________
1
The defendants’ briefing usually cites this key statute as “Section 1971,” a former
section of Title 42; the plaintiff cites to 52 U.S.C. § 10101. The conflicting cites illustrate
that the location of statutes in the U.S. Code can change. “The responsibility for creating
and maintaining the Code has always been lodged in various locations within the House of
Representatives.” Will Tress, Lost Laws: What We Can’t Find in the United States Code,
40 GOLDEN GATE U. L. REV. 129, 143 (2010). The first official compilations were in 1873
and 1878, enacted by Congress and called the Revised Statutes.
Id. at 134–35.
Controversies over those compilations may have delayed any new ones until the first
United States Code was published in 1926; beginning in 1934, there has been a new official
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requiring an original signature unduly burdens the right to vote in violation
of the First and Fourteenth Amendments. In September 2021, the district
court granted motions to intervene as defendants filed by the Texas Attorney
General and the voter registrars of two additional counties.
After discovery, the defendants and Vote.org filed competing motions
for summary judgment. The district court granted Vote.org’s motion.
Vote.org v. Callanen, 609 F. Supp. 3d 515, 540 (W.D. Tex. 2022). The court
concluded that requiring an original signature violates Section 10101 of Title
52 because such a signature is not “material” to an individual’s qualifications
to vote.
Id. at 527–32. The court also determined that the requirement
unduly burdens the right to vote in violation of the First and Fourteenth
Amendments.
Id. at 532–39. The court permanently enjoined the defendants
from enforcing the Wet Signature Rule. Id. at 540. The original defendants
did not appeal. The only briefing from an appellant is by the Attorney
General as intervenor. Consequently, we will refer to the appellants as Texas
or the State.
_____________________
edition of the Code every six years. Id. at 135–37 & 137 n.42 (citing 1 U.S.C. § 202(c)). In
the 1934, 1940, and 1946 Codes, the then-sole section of this key statute was in the Code
title for “Aliens and Citizenship” or “Aliens and Nationality” as
8 U.S.C. § 31 (1934, 1940,
1946). What is now
42 U.S.C. § 1983 was also in that title:
8 U.S.C. § 43 (1934, 1940, 1946).
In the 1952 Code, the sections were recodified in the title for “Public Health and Welfare”
as
42 U.S.C. § 1971 and § 1983 (1952). See 1952 Code at 713–14 (explaining omissions,
repeals, and transfers of Title 8 sections to other titles).
In 1974, the Office of the Law Revision Counsel of the House of Representatives
was created and became responsible for codification. Pub. L. No. 93-554, Title I, ch. III, §
101, Dec. 27, 1974,
88 Stat. 1777, codified as 2 U.S.C. § 285–285g. “In 2014, provisions
relating to voting and elections were transferred in the United States Code from titles 2 and
42 into a new Title 52, Voting and Elections.” Office of the Law Revision Counsel, United
States Code, Editorial Reclassification, Title 52, United States Code, found at
https://uscode.house.gov/editorialreclassification/t52/index.html. Section 1971 became
52 U.S.C. § 10101.
Id. (link to chart of transferred provisions). Section 1983, a broadlyapplicable civil rights statute, was not transferred. Of course, we cite the current Code.
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A motions panel of this court granted a stay of the injunction pending
resolution of the appeal. Vote.org, 39 F.4th at 309. That panel held that all
the factors for a stay, including likelihood of success on the merits by the
appellants, had been satisfied. Id. at 308–09. This motions panel decision
does not bind us as a merits panel. Veasey v. Abbott, 870 F.3d 387, 392 (5th
Cir. 2017). We have, though, examined that opinion closely and respectfully.
DISCUSSION
We review the grant of summary judgment de novo. Nationwide Mut.
Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014). Summary judgment is
proper when “there is no genuine dispute as to any material fact.” FED. R.
CIV. P. 56(a). In reviewing the record, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc.,
530 U.S. 133, 150 (2000).
Texas argues the district court erred in its analysis of Article III
standing, of the relevant section of the Civil Rights Act of 1964, and of the
First and Fourteenth Amendments. We address these issues in that order.
I. Article III standing
The parties briefed the issues of both Vote.org’s possible
organizational standing and its third-party standing. We start with a
discussion of organizational standing.
We examine standing de novo. United States v. $500,000.00 in U.S.
Currency, 591 F.3d 402, 404 (5th Cir. 2009). Associational standing is
derivative of an organization’s members. OCA-Greater Houston v. Texas,
867
F.3d 604, 610 (5th Cir. 2017). Because Vote.org is a non-membership
organization, it can assert only organizational standing. The requirements
for organizational standing mirror those for individual plaintiffs. Association
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of Cmty. Org. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999). An
organization must demonstrate that (1) it suffered an injury in fact; (2) the
injury is “fairly traceable to the challenged action of the defendant”; and (3)
it is “likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–
61 (1992) (citation omitted).
We first review whether Vote.org satisfies each of those requirements
for organizational standing in a general sense, i.e., without analyzing whether
it has standing to bring this suit under Section 1983. That analysis will
determine whether Vote.org has suffered an injury to itself that would be
redressed if the suit were successful. We then analyze third-party standing
to see if Vote.org can sue on behalf of prospective voters. Finally, we analyze
whether Vote.org can bring its claims via Section 1983.
a. Injury in fact
Organizations can satisfy injury-in-fact for standing under two
theories: associational standing and organizational standing. OCA-Greater
Houston, 867 F.3d at 610. “An organization suffers an injury in fact if a
defendant’s actions ‘perceptibly impair[]’ the organization’s activities and
consequently drain the organization’s resources.” El Paso Cnty. v. Trump,
982 F.3d 332, 343 (5th Cir. 2020) (quoting Havens Realty Corp. v. Coleman,
455 U.S. 363, 379 (1982)). A “setback to [an] organization’s abstract social
interests” is insufficient. Havens,
455 U.S. at 379. “[A]n organization may
establish injury in fact by showing that it had diverted significant resources to
counteract the defendant’s conduct.” N.A.A.C.P. v. City of Kyle,
626 F.3d
233, 238 (5th Cir. 2010).
Vote.org contends that, as a result of the Wet Signature Rule, it is no
longer able to make use of its app and “has been diverting its limited
resources to less effective (and less efficient) means of increasing turnout and
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political engagement.” Vote.org’s CEO testified that the Wet Signature
Rule caused it to shut down its app and impaired the organization’s “ability
to reach voters” and “to get people . . . to participate in elections.”
Moreover, because of the shutdown and concomitant drain on resources,
Vote.org was “not [] able to do some of [the] innovative work” it pursues in
other states, such as programs at historically black colleges and universities,
other college programs, youth influencer programs, corporate organizing
activities, and advocating for election day as a holiday. Indeed, Vote.org’s
CEO testified that the Wet Signature Rule took up significant staff time and
resources across its engineering, partnership, and operations teams that
could have been spent on other efforts. Vote.org contends this is enough to
prove it has suffered an injury in fact.
Texas argues that organizational standing cannot be premised on
“routine” responses to allegedly unlawful conduct. That concept originated
in City of Kyle. There, we concluded that plaintiff home-builders associations
had not shown how their response to certain ordinances “differ from [the
home building associations’] routine lobbying activities.” Id. at 238. We did
not hold that resources spent on routine activities were necessarily irrelevant
to the existence of standing, and our ultimate holding did not rely on that
consideration. We held that plaintiffs lacked standing after faulting them for
merely “conjectur[ing] that the resources that the HBA had devoted to the
revised ordinances could have been spent on other unspecified HBA
activities.”
Id. at 239.
Texas also relies on a precedent in which a community organization
sought standing to challenge federal expenditures on a border wall. El Paso
Cnty., 982 F.3d at 336–37, 344. We found that record to be unclear as to
whether the community organization’s responses to border-wall
construction “fall within the general ambit of its normal operations.” Id. at
344. The organization’s lack of standing was also based on its inability to
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establish traceability and its reliance on a “single vague, conclusory assertion
that the organization had to divert resources.” Id.
The evidence here on diversion of resources is more detailed than in
either City of Kyle or El Paso County. Vote.org has presented more than
conjecture or a “conclusory assertion.” It has provided substantial evidence
that, because of the requirement for original signatures, it had to expend
additional time beyond the routine activities of multiple departments and
divert resources away from “particular projects.” El Paso Cnty., 982 F.3d at
344. That diversion “perceptibly impaired” Vote.org’s ability to pursue its
mission. Havens, 455 U.S. at 379.
b. Traceability
“An organization cannot obtain standing to sue in its own right as a
result of self-inflicted injuries, i.e., those that are not ‘fairly traceable to the
actions of the defendant.’” Association of Cmty. Orgs. for Reform Now v.
Fowler, 178 F.3d 350, 358 (5th Cir. 1999) (quoting Bennett v. Spear,
520 U.S.
154, 162 (1997)). If an organizational plaintiff is asserting an injury caused by
a need to divert its resources and actions, it must show that the change
“result[ed] from counteracting the effects of the defendant’s actions.”
Louisiana ACORN Fair Hous. v. LeBlanc,
211 F.3d 298, 305 (5th Cir. 2000).
Any diversion must be a specific response to the challenged law or action. It
is not fairly traceable to defendants if the diversion responded not only to the
defendants’ conduct but also to other forces. Texas State LULAC v. Elfant,
52 F.4th 248, 254 (5th Cir. 2022).
Vote.org’s injury includes the continuing bar to the use of its app. The
shutdown of the app was a “direct result of the challenged law.” Id. at 254.
As the Secretary’s Rule 30(b)(6) designee explained, the “particular
genesis” of the Wet Signature Rule was Vote.org’s app. Moreover, several
county registrars testified they would accept applications using Vote.org’s
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app if not for the Wet Signature Rule. It is the shutdown of the app, of course,
that produced the diversion of resources described earlier.
Vote.org has met the traceability requirement. Texas does not
challenge the redressability element of standing. Regardless, that
requirement is plainly met. Relief from the requirement of original signatures
on voter registration forms would allow Vote.org to offer its application again.
We thus conclude that Vote.org has organizational standing to seek
redress for its own alleged injuries.
c. Third-party standing
Even though we hold that Vote.org has a traceable injury redressable
in litigation, its complaint asserts that the Wet Signature Rule violates the
federal statutory and constitutional rights of voters.
Certainly, Vote.org itself is not a Texas voter. A party ordinarily may
assert only “his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.” Warth v. Seldin, 422
U.S. 490, 499 (1975). This is a prudential rule, though, not a constitutional
one. In re Deepwater Horizon,
857 F.3d 246, 252 (5th Cir. 2017). We examine
the possibility of third-party standing to assert claims of voters.
1. Sufficiency of relationship between Vote.org and
voters
Vote.org sued under Section 1983 because of alleged violations of
voters’ rights under the Constitution and Section 10101. A necessary
premise for the following analysis is that voters themselves have a right to
bring such a suit. We will consider the validity of that premise later.
Third-party standing often turns on “categorized relationships” —
e.g., vendor-vendee, doctor-patient, employer-employee. 13A WRIGHT &
MILLER, FEDERAL PRACTICE AND PROCEDURE § 3531.9.3 (3d ed. 2022).
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Such standing “has become firmly established with respect to a number of
easily categorized relationships. Vendors are routinely accorded standing to
assert the constitutional rights of customers and prospective customers.” Id.
This treatise reached that conclusion after discussing a Supreme Court
opinion invalidating a state law prohibiting beer vendors from selling to
females under the age of 18 or to males under the age of 21. Id. (discussing
Craig v. Boren, 429 U.S. 190, 195 (1976)). The initially underage plaintiffs
aged out before the Supreme Court considered the appeal, but the Court
allowed the case to proceed because the plaintiff beer vendor could
reasonably assert the claims of prospective beer purchasers, as well as its own
claims. Craig,
429 U.S. at 195. “[V]endors and those in like positions have
been uniformly permitted to resist efforts at restricting their operations by
acting as advocates for the rights of third parties who seek access to their
market or function.” WRIGHT & MILLER, FEDERAL PRACTICE § 3531.9.3
(quotation marks, citation, and alterations omitted); see also Maryland Shall
Issue, Inc. v. Hogan,
971 F.3d 199, 216 (4th Cir. 2020) (collecting cases).
We end where we began. Third-party standing is a prudential
consideration. Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 956 (1984). Judicial self-restraint is warranted to avoid making
“unnecessary pronouncement[s] on constitutional issues” and “premature
interpretations of statues.”
Id. at 955 (citation omitted). On the other hand,
where a party can ensure that “issues . . . will be concrete and sharply
presented,” prudential concerns are less salient.
Id. On these facts,
Vote.org’s position as a vendor and voting rights organization is sufficient to
confer third-party standing.
To complete our multi-part examination of standing, we analyze
whether Vote.org, as a non-voter asserting violations of voting rights, has a
claim under Section 1983.
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2. Third-party claims via Section 1983
Section 1983 specifies that those acting under color of state law who
subject “any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured.”
42 U.S.C. § 1983 (emphasis added). The claim here is that voters have been
deprived of their rights under the Constitution and Section 10101, and that
Vote.org itself has been injured.
Texas asserts that Section 1983’s reference to “party injured”
encompasses only the party “depriv[ed]” of its rights, not someone seeking
to vindicate another’s rights. Section 1983 plaintiffs, though, often have been
allowed to vindicate the rights of others. We offer a few examples. A
bookseller was allowed to vindicate the First Amendment rights of book
buyers under Section 1983. Virginia v. American Booksellers Ass’n, 484 U.S.
383, 392–93 (1988). In Craig, a vendor invoked Section 1983 to assert the
Fourteenth Amendment equal protection rights of its customers.
429 U.S.
at 195; see Walker v. Hall,
399 F. Supp. 1304, 1306 (W.D. Okla. 1975), rev’d
sub nom. Craig v. Boren,
429 U.S. 190 (confirming Craig was a 1983 action).
Finally, this court permitted a Section 1983 suit for a business that was
asserting the First Amendment rights of its employees and customers. Hang
On, Inc. v. City of Arlington,
65 F.3d 1248, 1251–52 (5th Cir. 1995).
Section 1983 is an appropriate vehicle for third-party claims.
II. Voting Rights Section of the 1964 Civil Rights Act and Section 1983
The parties dispute whether Section 10101 creates a private right of
action. They also dispute whether, even if a private right of action were created, it could be enforced using Section 1983. We discuss both disputes.
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a. Private right enforceable under Section 1983
The section on voting in the 1964 Civil Rights Act 2 established what
is often called the Materiality Provision. That provision prohibits denying
the right to vote because of minor errors or omissions:
No person acting under color of law shall . . . deny the right of
any individual to vote in any election because of an error or
omission on any record or paper relating to any application,
registration, or other act requisite to voting, if such error or
omission is not material in determining whether such
individual is qualified under State law to vote in such election.
52 U.S.C. § 10101(a)(2)(B). Section 10101 does not explicitly grant
individuals the right to bring suit. The only explicit right to sue is the one
granted to the Attorney General. § 10101(c).
A private cause of action may still be implied when a statute (1)
contains rights-creating language and (2) displays “an intent to create a
private remedy.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002); Alexander
v. Sandoval,
532 U.S. 275, 286 (2001). If “a plaintiff demonstrates that a
statute confers an individual right, the right is presumptively enforceable by
§ 1983.” Gonzaga,
536 U.S. at 284.
1. Rights-creating language
The first requirement is met when “the provision in question is
phrased in terms of the persons benefitted” or has “an unmistakable focus
on the benefited class.” Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599
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2
The more detailed and significant contemporaneous legislation on voting was the
1965 Voting Rights Act. Pub. L. No. 89-110, 79 Stat. 437 (1965). It is not involved in this
litigation except to the extent of our relying by analogy on caselaw under that Act.
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U.S. 166, 183 (2023) (quotation marks and citation omitted). There is strong
“rights-creating” language in the first section of the statute:
All citizens of the United States who are otherwise qualified by
law . . . , shall be entitled and allowed to vote at all such
elections, without distinction of race, color, or previous
condition of servitude; any constitution, law, custom, usage, or
regulation of any State or Territory, or by or under its
authority, to the contrary notwithstanding.
52 U.S.C. § 10101(a)(1). That statutory language has existed since 1870; it
was the entirety of the section until the Civil Rights Act of 1957. Act of May
31, 1870, ch. 114, § 1,
16 Stat. 140; see Historical and Statutory Notes,
Codifications,
42 U.S.C.A. § 1971 (2012), at 145 (now 52 U.S.C.§ 10101).
Several courts held there was a private right under the original section,
though they were not using the much later Gonzaga test. Indeed, “from the
enactment of § 1983 in 1871 until 1957, plaintiffs could and did enforce the
provisions of § 1971 [now, § 10101] under § 1983.” Schwier v. Cox, 340 F.3d
1284, 1295 (11th Cir. 2003) (collecting cases). One example of a suit brought
by private plaintiffs under the pre-1957 statute concerned the refusal of local
officials to allow a black man to vote. See Smith v. Allwright,
321 U.S. 649,
650–51 (1944). The plaintiff claimed that actions of local officials “violate
Sections 31 and 43 of Title 8 of the United States Code,”
id., which are now
Section 10101 and Section 1983. Two other examples are from this court. In
each, we held that a private party had a right to seek relief when the original
1870 language was the entirety of the statute. See Reddix v. Lucky,
252 F.2d
930, 931, 934 (5th Cir. 1958) (alleged violations occurred in 1956, before the
1957 amendment); Chapman v. King,
154 F.2d 460 (5th Cir. 1946) (private
suit allowed).
In 1964, Congress added the Materiality Provision to what is now
Section 10101. Civil Rights Act of 1964, Pub. L. No. 88-352, § 101,
78 Stat.
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241. That amendment added language that also is written in terms of rights:
“No person acting under color of law shall . . . deny the right of any individual
to vote in any election because of an error or omission,” etc. 52 U.S.C.
§ 10101(a)(2)(B) (emphasis added). The new provision, subsection
(a)(2)(B), identifies a specific means of denying the rights described in
subsection (a)(1). We do not see that the focus on rights of Section 10101(a)
is distorted by the enactment of a specific prohibition.
The phrasing of the Materiality Provision is similar to language the
Court has held to confer a private right.3 See Gonzaga, 536 U.S. at 284 & n.3.
Moreover, the Materiality Provision neither has an “aggregate focus” nor
does it “speak only in terms of institutional policy and practice.”
Id. at 288.
It is true that the subject of the Materiality Provision is the regulating official
— “no person acting under color of law,”
52 U.S.C. § 10101(a)(2)(B) — not
the person regulated by state law. The Supreme Court recently stated,
though, that “it would be strange to hold that a statutory provision fails to
secure rights simply because it considers, alongside the rights bearers, the
actors that might threaten those rights (and we have never so held).”
Talevski, 599 U.S. at 185. We agree with the Eleventh Circuit that, although
“[t]he subject of the sentence is the person acting under color of state
law, . . . the focus of the text is nonetheless the protection of each individual’s
right to vote.” Schwier,
340 F.3d at 1296. Further, the Materiality
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3
For example, the Federal Nursing Home Reform Act provides that “nursing
facilit[ies]” must “protect and promote” residents’ “right to be free from . . . any physical
or chemical restraints imposed for purposes of discipline or convenience and not required
to treat the resident’s medical symptoms.” 42 U.S.C. § 1396r(c)(1)(A)(ii). It also requires
“nursing facilit[ies]” to “not transfer or discharge [a] resident” unless certain enumerated
preconditions are met. § 1396(c)(2)(A). The Supreme Court recently held that these
provisions confer a private right. Talevski, 599 U.S. at 184–86.
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Provision’s language is decidedly more rights-focused than language the
Court has held not to confer a private right. 4
We conclude that Sections 10101(a)(1) and 10101(a)(2)(B) both confer
an individual right.
2. Congressional intent to create a private remedy
“Once a plaintiff demonstrates that a statute confers an individual
right, the right is presumptively enforceable by § 1983.” Gonzaga, 536 U.S.
at 284. Nonetheless, even when “a statutory provision unambiguously
secures rights, a defendant ‘may defeat t[he] presumption by demonstrating
that Congress did not intend’ that § 1983 be available to enforce those
rights.” Talevski, 599 U.S. at 186 (quoting Rancho Palos Verdes v. Abrams,
544 U.S. 113, 120 (2005) (alterations omitted)). Different phrasing appears
in Gonzaga: rebutting the presumption requires “showing that Congress
specifically foreclosed a remedy under § 1983.” Gonzaga,
536 U.S. at 284
n.4 (quotation marks and citation omitted).
In looking for rebuttal evidence, we explore a little more statutory
history. In 1957, Congress amended the Civil Rights Act, granting
enforcement power to the Attorney General of the United States. Civil
Rights Act of 1957, Pub. L. No. 85-315, § 131,
71 Stat. 634, 637 (1957). The
_____________________
4
The Supreme Court held there was no private right in the Family Educations
Rights and Privacy Act, which provides: “No funds shall be made available under any
applicable program to any educational agency or institution which has a policy or practice
of permitting the release of education records . . . of students without the written consent
of their parents to any individual, agency, or organization.” Gonzaga, 536 U.S. at 279
(quoting 20 U.S.C. § 1232g(b)(1)).
The Supreme Court also held Section 602 of the Civil Rights Act contained no
rights-creating language because the statute “focuses neither on the individuals protected
nor even on the funding recipients being regulated, but on the agencies that will do the
regulating.” Sandoval, 532 U.S. at 289.
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amendment’s text does not mention private actions. The argument is that
by explicitly granting authority to the Attorney General to enforce the Act,
private rights were implicitly withdrawn. We will examine the validity of that
argument after explaining a few more details.
The 1957 amendment also added what is now 52 U.S.C. § 10101(d),
which provides that all actions brought “pursuant to this section” can be
exercised “without regard to whether the party aggrieved shall have
exhausted administrative or other remedies that may be provided by law.”
Civil Rights Act of 1957,
Pub. L. No. 85-315, § 131(d),
71 Stat. 637. Critically
in our analysis of whether granting enforcement authority had the effect of
cancelling the private remedy, the “party aggrieved” reference is unlikely to
refer to the Attorney General. The House Report on the 1957 Act cites and
discusses court opinions in which exhaustion of remedies had been required
for private plaintiffs. H.R. Rep. No. 85-291 (1957), 10–11, reprinted in 11984
U.S. CONG. SERIAL SET (1957). The Eleventh Circuit found it to be illogical
for Congress to have eliminated exhaustion requirements for private
plaintiffs unless there were a corresponding private right. Schwier,
340 F.3d
at 1296. We interpret these 1957 amendments as augmenting the implied but
established private right to sue with an explicit right in the Attorney General.
We find no explicit foreclosure of a remedy under Section 1983. To
avoid recognition of a private right, the “defendant must show that Congress
issued the same command implicitly, by creating ‘a comprehensive
enforcement scheme that is incompatible with individual enforcement under
§ 1983.’” Talevski, 599 U.S. at 186 (quoting Rancho Palos Verdes, 544 U.S. at
120)). Thus, we examine the enforcement scheme.
Several subsections of the statute detail the Attorney General’s
authority. 52 U.S.C. § 10101(c)–(e). These elaborate statutory explanations
of how enforcement by the Attorney General is to proceed certainly seem to
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us to qualify as a “comprehensive scheme.” Regardless of how
comprehensive it is, though, use of Section 1983 is foreclosed only when the
scheme is “incompatible” or “inconsistent” with Section 1983 enforcement.
Talevski, 599 U.S. at 187. Of course, the first part of what is now Section
10101 was routinely enforced through Section 1983. See Schwier, 340 F.3d at
1295. That means there is a long history of compatibility between at least parts
of Section 10101 and Section 1983 that predates the addition of the Attorney
General enforcement in 1957. The details of the Attorney General’s
enforcement scheme create no conflicts with private suits under Section
1983.
Besides an incompatible enforcement regime, the Court has also
explained that “the existence of a more restrictive private remedy for
statutory violations” than what Section 1983 allows creates “the dividing line
between those cases in which we have held that an action would lie under
§1983 and those in which we have held that it would not.” Rancho Palos
Verdes, 544 U.S. at 121 (emphasis added). Section 10101 lacks any specific
“private judicial right of action” or “private federal administrative remedy”
that requires plaintiffs to comply with particular procedures. Talevski, 599
U.S. at 190. Thus, this exception to using Section 1983 is inapplicable.
With our review of the Supreme Court’s relevant guidance behind us,
we examine what other circuits have determined. Two circuits have held that
the Materiality Provision creates a private right enforceable under Section
1983. See Migliori v. Cohen, 36 F.4th 153, 159 (3d Cir. 2022), cert. granted,
judgment vacated sub nom. Ritter v. Migliori,
143 S. Ct. 297 (2022); Schwier,
340 F.3d at 1297. A third held that the Materiality Provision “is enforceable
by the Attorney General, not private citizens.” McKay v. Thompson,
226 F.3d
752, 756 (6th Cir. 2000). We find no other circuit court to have addressed
the issue. We will discuss all three opinions.
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We have discussed Schwier to some extent already. 5 The components
of the Eleventh Circuit’s analysis included reliance on the caselaw allowing
private suits under the pre-1957 version of this statute. Schwier, 340 F.3d at
1295. The court held that exhaustion of remedies would be irrelevant to
Attorney General enforcement of the statute, yet the same amendment that
added Attorney General enforcement to a statute that had for decades been
used by private plaintiffs also made clear exhaustion was not required;
exhaustion is irrelevant except as to private suits.
Id. at 1296. That analysis
is sound.
Undermined by later caselaw is the Schnier’s reliance on Allen v. State
Board of Elections, 393 U.S. 544 (1969).
Id. at 1294–95. Allen involved
whether there was a private cause of action under Section 5 of the 1965 Voting
Rights Act. Allen,
393 U.S. at 548. That section limited the right of States to
change voting prerequisites.
Id. The Court in Allen “reasoned that the goals
of the statute were much more likely to be reached if private citizens were not
‘required to depend solely on litigation instituted at the discretion of the
Attorney General.’” Schwier, 340 F.3d at 1294–95 (quoting Allen,
393 U.S.
at 556).
Almost five decades after Allen and one decade after Schwier, the
Supreme Court declared that Allen and precedents like it too readily implied
a cause of action in statutes and had largely lost their force because “the
Court adopted a far more cautious course.” Ziglar v. Abassi, 582 U.S. 120,
_____________________
5
In its first opinion, the Eleventh Circuit provided extensive analysis for its
conclusion that there was a private right, then remanded to the district court for further
proceedings because the district court had gone no further than holding there was no
private right. Schwier, 340 F.3d at 1297. When the case returned to the circuit court, it said
it would “affirm the district court’s judgment for the reasons stated in the district court’s
memorandum opinion.” Schwier v. Cox,
439 F.3d 1285, 1286 (11th Cir. 2006) (citing
Schwier v. Cox,
412 F. Supp. 2d 1266 (N.D. Ga. 2005)).
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132 (2017). Instead, the key was whether there was congressional intent to
create a private right. Id. at 133 (citing Sandoval,
532 U.S. at 286).
Regardless of the reliance on Allen, the Schwier court properly applied
Sandoval and Gonzaga and identified the rights-creating language in what are
now Sections 10101(a)(1) and (a)(2)(B). Schwier, 340 F.3d at 1296. The
rights created “are specific and not amorphous,” i.e., they protect the right
to vote when some immaterial information is not provided.
Id. at 1296–97.
The language of the Materiality Provision is also mandatory: “No person
acting under color of law shall . . . deny the right of any individual to vote.”
Id. (quoting what is now Section 10101(a)(2)(B)). Those points, plus the
reference to not needing to exhaust administrative remedies in the same
amendment that added Attorney General enforcement powers, make a
strong case for finding congressional intent to allow a private remedy.
The Third Circuit also held that the Materiality Provision created a
private right presumably enforceable under Section 1983. See Migliori, 36
F.4th at 159. 6 “To rebut the presumption, a defendant must point to either
specific evidence from the statute itself or a comprehensive enforcement
scheme that is incompatible with individual enforcement under § 1983.” Id.
at 160 (quotation marks and citation omitted). The court found no evidence
in the text of the statute to rebut the presumption nor a “comprehensive
enforcement scheme that is incompatible with individual enforcement under
§ 1983.” Id. We agree with those conclusions.
The Sixth Circuit was the first circuit court to analyze whether there
was a private right under the Materiality Provision, and it held there was not.
See McKay, 226 F.3d at 756. This is the entirety of that court’s analysis:
_____________________
6
The Supreme Court vacated Migliori and remanded to the Third Circuit with
instructions to dismiss the case as moot. Migliori, 143 S. Ct. at 297–98.
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The district court correctly dismissed this claim for lack of
standing. Section 1971 is enforceable by the Attorney General,
not by private citizens. See 42 U.S.C. § 1971(c); Willing v. Lake
Orion Community Sch. Bd. of Trustees, 924 F. Supp. 815, 820
(E.D. Mich. 1996).
Id.
Obviously, the Sixth Circuit considered the silence in the statutory
language and the analysis of the cited district court to be sufficient. The cited
district court opinion said little more than the Sixth Circuit did: “Section
1971 is intended to prevent racial discrimination at the polls and is
enforceable by the Attorney General, not by private citizens.” Willing, 924
F. Supp. at 820. In addition to the statutory language, the Willing court cited
Good v. Roy,
459 F. Supp. 403, 405 (D. Kan. 1978).
Id. That case was not
even about the Materiality Provision, but it did refer to the statutory language
that Section 1971 was to be enforced by the Attorney General. Good,
459 F.
Supp. at 405. Neither the Sixth Circuit nor these two district courts wrestled
with the considerations for implying a private right. Moreover, McKay
predates the 2001 Sandoval opinion and the 2002 Gonzaga opinion.
We conclude that private enforcement via Section 1983 does not
thwart Congress’s enforcement scheme. Vote.org can seek a remedy for
Section 10101 violations by way of Section 1983.
Finally — does Vote.org’s claim have merit?
III. Merits of the Materiality Provision claim
Though we earlier quoted the Materiality Provision, we quote again
for ready reference:
No person acting under color of law shall . . .
deny the right of any individual to vote in any election
because of an error or omission on any record or paper
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relating to any application, registration, or other act
requisite to voting, if such error or omission is not
material in determining whether such individual is
qualified under State law to vote in such election.
52 U.S.C. § 10101(a)(2)(B).
We need to interpret that provision. Statutory definitions often get us
started. We have no such assistance, though, as the core term of “material”
is not defined. The most-used legal dictionary gives this definition: “Of such
a nature that knowledge of the item would affect a person’s decision-making:
significant; essential.” Material, BLACK’S LAW DICTIONARY (8th ed. 2004).
A more comprehensive dictionary has this definition: “Of serious or
substantial import; significant, important, of consequence.” Material,
OXFORD ENGLISH DICTIONARY, III.6.a. (July 2023). We reject “essential”
as a reasonable meaning, but the rest of the variations seem about right.
There is not much caselaw applying this provision. To some degree,
then, we must set our own course. Should a district court, with some level of
deferential review on appeal, decide as a de novo factual, legal, or mixed legalfactual question, whether a particular statutory provision is material in
determining if a person is qualified to vote? Or, is some weight given to
legislative judgment, which is not controlling perhaps but at least meaningful
to some degree?
There is a constitutional challenge as well, for which considerable
Supreme Court guidance exists. We will get to that.
The Section 10101(a)(2)(B) claim in this suit challenges a legislative
judgment on the appropriate procedures for registering voters. A vendor
wishing to facilitate voter registration contests a statutory requirement for an
applicant’s signature that the vendor’s smartphone application cannot
satisfy. Usually, a legislature would not need to revise statutes to allow a
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private party to operate its business. Build a better app, the State might insist.
Still, the Materiality Provision mandates that an error or omission in a
requisite for voting be material before the requirement can be enforced.
Here, if an application received by a registrar is to be rejected, even when the
reasons for the error or omission are limitations in Vote.org’s app, we accept
(in the absence of any contrary argument) that materiality must be shown.
We will proceed in the following order. First, we consider the limited
caselaw from other circuit courts. Second, we analyze whether some weight
should be given to Texas’s legislative judgment as to the utility of the
contested provision. Third, we explore in some depth a factor that the
Supreme Court has identified as relevant in voting rights claims. Finally, we
pull those strands together as we determine the merits of the claim here.
a. Other circuits’ interpretations
We again review the few circuit court opinions that analyze the
Materiality Provision. We already discussed those opinions insofar as they
addressed whether the statutory language created a private right enforceable
through Section 1983. We return to the two opinions that found a private
right and review their analysis of materiality.
The Eleventh Circuit’s 2006 opinion considered whether it was
permissible for Georgia to require registrants to provide a Social Security
number. Schwier, 439 F.3d at 1286. The circuit court affirmed for the reasons
the district court had stated in its opinion.
Id. We therefore review the
district court’s analysis.
One issue, not present in our dispute, was the effect of the Privacy
Act, 5 U.S.C. § 552a, on requiring Social Security numbers. Schwier v. Cox,
412 F. Supp. 2d 1266, 1276 (N.D. Ga. 2005), aff’d,
439 F.3d 1285 (11th Cir.
2006). The district court found that requiring this unique number could help
“prevent voter fraud,” but concluded that the Privacy Act nevertheless
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proscribed its necessity. Id. As to our issue of materiality, the court held that
having a Social Security number was not one of the qualifications for a voter
under Georgia law, and that meant requiring its disclosures to vote could not
be material when determining whether an applicant was qualified.
Id.
We do not find Schwier directly applicable. Georgia was insisting on a
manner of voter identification that added to the statutory qualifications for
voting, namely, that a voter have a Social Security number.
Much more recently, the Third Circuit in 2022 evaluated whether a
Pennsylvania law requiring a voter to write a “date on the outside of a mail-in ballot . . . is material to the voter’s qualifications and eligibility to vote.”
Migliori, 36 F.4th at 156. 7 As with any out-of-circuit precedent, we consider
the opinion’s persuasiveness. We do that here even though the Supreme
Court vacated the opinion. Migliori, 143 S. Ct. at 298. For mail-in voting in
Pennsylvania, a prospective voter was sent a ballot and a return envelope; a
declaration was printed on the envelope that was to be signed and dated. Id.
at 157. The envelopes containing the contested ballots were not dated. Id.
The court began its analysis by looking to Pennsylvania’s substantive voting
requirements, including age and residency. Id. at 162–63. The State argued,
in part, that dating the envelope helped to deter fraud. Id. at 163. The court
_____________________
7
We earlier explained that a majority of the Supreme Court vacated Migliori
because it held that the case was moot. See supra note 6. One explanation for mootness is
that after the Third Circuit ordered that the disputed ballots be counted, “the election was
certified. Then, essentially because plaintiffs had won, the Supreme Court vacated the
Third Circuit’s decision.” David Herman, Reviving the Prophylactic VRA: Section 3,
Purcell, and the New Vote Denial, 132 YALE L.J. 1462, 1478 n.91 (2023).
Justice Alito, writing for three dissenting justices, concluded the Third Circuit’s
application of the Materiality Provision was “very likely wrong.” Ritter v. Migliori, 142 S.
Ct. 1824, 1824 (2022) (Alito, J., dissenting). We find Justice Alito’s analysis largely
dependent on difficulties of applying the Materiality Provision to vote counting. That
possibly overbroad application of the Materiality Provision is not involved here.
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explained that “[f]raud deterrence and prevention are at best tangentially
related to determining whether someone is qualified to vote.” Id. Moreover,
“whatever sort of fraud deterrence or prevention this requirement may
serve, it in no way helps the [State] determine whether a voter’s age,
residence, citizenship, or felony status qualifies them to vote.”
Id. The court
ultimately concluded that the date requirement violated the Materiality
Provision. Id. at 164.
Of course, the only issue was whether a date on an envelope in which
a ballot was returned to the proper officials was material to the qualifications
to vote. None of the votes in dispute arrived after the election, id. at 157, so
the date was not needed as evidence that the votes were timely cast.
A signature was also required on the envelope, and that requirement
was uncontested. The signature was to be next to a declaration on the
envelope, which included “a statement of the elector’s qualifications,
together with a statement that the elector has not already voted in the primary
or election.” 25 Pa. Stat. § 3150.14(b). An original versus an alternative form
of signature was also not in question.
The immateriality of the omissions in those two decisions was fairly
obvious. Overall, nothing in Schwier and Migliori causes us to question a
State’s requiring a signature in some form on documents relating to voting.
Indeed, the Texas requirement of a signature is not challenged in this case.
Only its form is contested — original versus an alternative that would allow
Vote.org to provide its services.
b. Weight of legislative judgments in general
For a successful claim of immateriality, the statutory text requires that
the “error or omission” — here, the absence of an original signature on a
voter application — not be material in determining qualifications to vote.
Some requirements for a voter application could easily be dismissed as
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immaterial, while others could as easily be upheld as material. The
requirement of an original signature is not in either category.
Among the questions for us to answer is the weight that should be
given to the State’s legislative judgment. This is not a constitutional claim
necessitating the application of a balancing test that we will analyze later in
addressing a First Amendment claim. We do draw from that caselaw,
though, that States have considerable discretion in establishing rules for their
own elections. The Supreme Court recognizes a “general rule that
evenhanded restrictions that protect the integrity and reliability of the
electoral process itself are not invidious” and may be upheld at least against
a constitutional attack. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,
189–90 (2008) (quotation marks and citation omitted). Crawford was a facial
challenge to an Indiana statute requiring a prospective voter to present at the
polls one of a wide range of photo identifications.
Id. at 185. The plaintiffs
alleged the measure was a “violation of the Fourteenth Amendment; that it
is neither a necessary nor appropriate method of avoiding election fraud.”
Id. at 187. The Court conceded that the requirement had sharply divided the
Indiana legislature on a partisan basis, and whether this was “the most
effective method of preventing election fraud may well be debatable.”
Id. at
196. What was not debatable was “the legitimacy or importance of the
State’s interest in counting only the votes of eligible voters.”
Id. The Court
upheld the state measure without deciding what the most effective means to
prevent fraud would be.
Crawford is only the latest example in which the Court acknowledged
the significance of a State’s authority to set its electoral rules and the
considerable deference to be given to election procedures so long as they do
not constitute invidious discrimination. The Court has explained that
“substantial regulation of elections” is necessary incident to a “fair and
honest . . . democratic process[].” Anderson v. Celebrezze, 460 U.S. 780, 788
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(1983) (citation omitted). Consequently, “the state’s important regulatory
interests are generally sufficient to justify reasonable, nondiscriminatory
restrictions.” Id. The Court has emphasized that when election regulations
“impose[] only reasonable, nondiscriminatory restrictions,” “the State’s
important regulatory interests” will usually “justify [those] restrictions.”
Burdick v. Takushi,
504 U.S. 428, 434 (1992) (quotation marks and citation
omitted). Indeed, a “State indisputably has a compelling interest in
preserving the integrity of its election process.” Purcell v. Gonzalez,
549 U.S.
1, 4 (2006) (citation omitted).
We have had our own cases that, like Crawford, analyze a photo
identification requirement for voters. See, e.g., Veasey v. Abbott, 830 F.3d 216
(5th Cir. 2016) (en banc). Veasey involved claims brought both under the
Constitution and under the following Voting Rights Act provision that
invalidate rules denying or abridging the right to vote based on race:
No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State
or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) of this title, as
provided in subsection (b).
52 U.S.C. § 10301(a). The Veasey court found little guidance on how to
analyze a claim that “the right to vote has been denied or abridged on account
of race.”
830 F.3d at 244 (emphasis in original). We examined the Supreme
Court’s factors that were first “enunciated by Congress to determine
whether [a discriminatory] impact is a product of current or historical
conditions of discrimination such that it violates Section 2.”
Id. (citing
Thornburg v. Gingles,
478 U.S. 30, 44–45 (1986)). The Supreme Court quite
recently reaffirmed the central role of the Gingles factors in disputes under
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Section 2 of the Voting Rights Act. See Allen v. Milligan, 599 U.S. 1, 17–19
(2023).
In considering this appeal, we also, like our court in Veasey, have found
little guidance on analyzing the materiality of a requirement for registering to
vote. Failing to register will deny a right to vote. The 1964 Materiality
Provision for registration to vote only slightly predates the 1965 Voting
Rights Act and can be considered a precursor in many respects. That makes
the Supreme Court’s guidance on applying the Voting Rights Act of
relevance to the earlier, quite narrow provision on voting.
As we structure our own approach, we explain why the Materiality
Provision — even though it was in the first section of the 1964 Civil Rights
Act 8 — is not limited to claims that immaterial requirements for voter
registration discriminate on the basis of race. The House Report on the Act
stated that the provision was a response to practices in many states that
treated blacks seeking to register to vote differently than whites. Civil Rights
Act of 1963, H.R. Rep. No. 88-914 (Nov. 20, 1963), Part 2, at 5, reprinted in
12544 U.S. CONG. SERIAL SET (1963). All three provisions that are now
Sections 10101(a)(2)(A)–(C) were adopted to attack the problem.
Subsection (A) requires any practice applied to one individual to be applied
to all. Subsection (C) prohibits literacy tests, which were applied to
discriminate against Blacks. Together with the Materiality Provision of
subsection (B), these three provisions were a formidable barrier to a
continuation of discriminatory practices. Surely, Congress anticipated in
1964 that usually the claim would be of racial discrimination. Thus, in
deciding the proper considerations for a claim under the Materiality
_____________________
8
The Materiality Provision was one of three subsections, all dealing with voting,
comprising the first section of the Civil Rights Act of 1964, Pub. L. No. 88-352, § 101,
78
Stat. 241.
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Provision, the existence of racial discrimination generally will be relevant
though, in light of the text of the provision, not essential. The provision was
written in a somewhat over-inclusive form to capture well-disguised
discrimination. We later discuss Texas’s argument that, by not requiring
proof of racial discrimination, the provision is unconstitutional.
Now, back to Veasey. The two factors we selected there from Gingles
were the ones uniquely relevant to examining claims of vote denial. Veasey,
830 F.3d at 244. We distinguished vote denial claims from those of vote
dilution, the latter often seen in legislative redistricting cases where the
Gingles factors are applied in full.
Id. If the claim is that the right to vote has
been denied or abridged on account of race, these factors are relevant:
[1] [T]he challenged standard, practice, or procedure must
impose a discriminatory burden on members of a protected
class, meaning that members of the protected class have less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their
choice, [and]
[2] [T]hat burden must in part be caused by or linked to social
and historical conditions that have or currently produce
discrimination against members of the protected class.
Id. (alterations in original) (quoting League of Women Voters of N.C. v. North
Carolina,
769 F.3d 224, 240 (4th Cir. 2014)).
Those two factors, though not focused on the significance of a voting
requirement, could also be relevant to a Materiality Provision claim when
racial discriminatory effects are alleged. Vote.org’s brief argued that the
challenge of providing an original signature is “particularly acute for young
adults, low-income voters, and minorities.” We find insufficient evidence or
argument, though, to conclude that Vote.org has claimed racial
discrimination. Indeed, the State argues that Vote.org’s claims fail because
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they are not about racial discrimination. We explain later that the Materiality
Provision does not require proof of racial discrimination. We similarly reject
that Vote.org’s claims are for racial discrimination. Perhaps, though, Gingles
has useful guidance for a claim that a particular “application, registration, or
other act requisite to voting” is material. 52 U.S.C. § 10101(a)(2)(B).
Of the other seven Gingles factors, we find one that is directly
applicable in analyzing a State’s justifications for the materiality of a practice:
“whether the policy underlying the state or political subdivision’s use of such
voting qualification, prerequisite to voting, or standard, practice or procedure
is tenuous.” Veasey, 830 F.3d at 246 (quoting Gingles,
478 U.S. at 37).
“Tenuous” suggests an absence of a strong connection between the policy
and the requirement. See id. at 262. Thus, if the policy or justification for
the requirement is merely tenuous, that is a factor in favor of invalidating the
requirement. On the other hand, how does a connection that is more than
tenuous affect our analysis? We explore tenuousness next.
c. Tenuousness
To understand the factor of tenuous connections, we examine one of
our opinions from two decades before Veasey. The discussion was in a case
about Texas’s long-time practice of electing judges county-wide. See League
of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993). All
voters in a populous county would elect numerous judges to serve on the
same local court with county-wide jurisdiction, but the plaintiffs sought to
have elections from smaller, single-judge districts. Id. at 837–38. The
Supreme Court had reversed and remanded our earlier decision that the
Voting Rights Act did not even apply to judicial elections. See Houston
Lawyers’ Ass’n v. Att’y Gen.,
501 U.S. 419, 423–24, 428 (1991). Though the
Act applied, the Supreme Court acknowledged that Texas had a legitimate
interest in linking a judge’s jurisdiction to the same geographical area as the
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one in which the judge’s voters resided. Id. at 426. Moreover, the “State’s
justification for its electoral system is a proper factor for the courts to assess
in a racial vote dilution inquiry, and the Fifth Circuit has expressly approved
the use of this particular factor in the balance of considerations.”
Id. at 426–
27 (citing Zimmer v. McKeithen,
485 F.2d 1297, 1305 (1973), aff’d sub nom.
East Carroll Par. Sch. Bd. v. Marshall,
424 U.S. 636 (1976)).
This cite to Zimmer is significant, for that is a source for the Gingles
Court’s adoption of factors to consider in vote-dilution cases. Gingles, 478
U.S. at 36 n.4. The “particular factor” cited with approval by the Houston
Lawyers’ Court was whether the State’s policy behind a requirement was
tenuous. Houston Lawyers’, 501 U.S. at 426–27. The Court remanded to us
for further proceedings, making clear that the State’s justifications for
maintaining a particular electoral scheme was only one factor to consider.
Id.
On remand, we discussed the consideration of the tenuousness of a
State’s justifications in some detail. We concluded that, “while the Supreme
Court rejected the contention that the linkage interest in all cases defeated
liability under § 2,[9] the Court endorsed the position that the linkage interest
is relevant to a determination of liability.” League of United Latin Am.
Citizens, 999 F.2d at 870. By “linkage interest,” we were referring to the
State’s interest in linking a judge’s jurisdiction to the same area as the judge’s
electoral base. Id. at 869. We identified the issue for determination as
deciding “when the linkage interest will outweigh other factors and defeat
liability under § 2.” Id. at 870. Some of our analysis was specifically about
the State’s interest in that linkage, which our court saw as far more than
_____________________
9
Section 2 of the Voting Rights Act is codified as 52 U.S.C. § 10301. It prohibits
imposition of a “voting qualification or prerequisite to voting” that “results in a denial or
abridgement of the right . . . to vote on account of race or color.” § 10301(a). “A violation
of subsection (a) is established” under a “totality of the circumstances” test. § 10301(b).
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tenuous. The policy has “additional and distinct relevance because it
advances objectively substantive goals.” Id. Useful, more general analysis
was also given.
Our resolution of the issue included quoting the Supreme Court “that
the linkage interest does not ‘automatically, and in every case, outweigh
proof of racial vote dilution.’” Id. (quoting Houston Lawyers’, 501 U.S. at
427). “We also reject[ed] the position of plaintiffs that the linkage interest
can never defeat liability under the totality of circumstances if ‘illegal’
dilution is otherwise established.”
Id. More generally, “[t]he weight, as well
as tenuousness, of the state’s interest is a legitimate factor in analyzing the
totality of circumstances.” Id. at 871. Our reference to “totality” borrowed
from Section 2 of the Voting Rights Act and the Supreme Court’s holding
that the State’s interest in a voting measure “is a legitimate factor to be
considered by courts among the ‘totality of circumstances’ in determining
whether a § 2 violation has occurred.” Houston Lawyers’,
501 U.S. at 426;
52 U.S.C. § 10301(b). We also stated that “[t]he substantiality of the state’s
interest has long been the centerpiece of the inquiry into the interpretation of
the Civil War Amendments and their interplay with the civil rights statutes.”
League of United Latin Am. Citizens, 999 F.2d at 871. As to the policy in that
case, we held that the State’s interest in linking judges’ electoral districts to
the geographical areas over which they had jurisdiction was substantial and
overrode the evidence of some vote dilution. Id. at 876.
The principles stated by our court that are relevant here were these:
(1) “[T]he principal probative weight of a tenuous state policy is its
propensity to show pretext.” Id. at 870 (quoting Terrazas v. Clements, 581 F.
Supp. 1319, 1345 n. 24 (N.D. Tex. 1983) (three-judge court)).
(2) “Proof of a merely non-tenuous state interest discounts one
Zimmer factor, but cannot defeat liability.” Id. at 871.
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(3) “[P]roof of a substantial state interest” may defeat liability even if
some vote dilution results. Id.
(4) “The issue of substantiality” of the State’s interest “is a legal
determination.” Id.
These opinions regarding election of judges were applying Section 2
of the Voting Rights Act. That provision prohibits “denial or abridgement
of the right . . . to vote on account of race or color.” 52 U.S.C. § 10301(a).
The Materiality Provision similarly prohibits denial of the right to vote due
to an immaterial error or omission in some “act requisite to voting.”
§ 10101(a)(2)(B). Because the State’s justification for its practice is relevant
even in a claim that a voting requirement has racially discriminatory effects
and some weight is given to the State’s judgment so long as that policy is
more than tenuous, we hold that similar considerations apply to the
Materiality Provision.
We thus need to examine the State’s policy and its connection to
original signatures. We draw from our earlier discussion of Crawford. There
we quoted the Supreme Court’s giving weight to the legislature’s judgment
in creating “evenhanded restrictions that protect the integrity and reliability
of the electoral process.” Crawford, 553 U.S. 189–90 (quotation marks and
citation omitted). “Evenhanded” is a synonym for nondiscriminatory. The
Crawford Court upheld the State’s remedy to protect against voter fraud —
photo identification — even though evidence of voter fraud was scant and
the most effective means of combatting any fraud that existed was
“debatable.” Id. at 195–96. Obviously, then, a State has considerable
discretion in deciding what is an adequate level of effectiveness to serve its
important interests in voter integrity. When we evaluate the materiality of a
measure, we must give weight to the State’s justification for it.
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Application of the tenuousness factor can be seen as involving two
steps. The first is determining if the connection between policy and
requirement is only tenuous. If it is, then the factor supports invalidating the
requirement. To avoid a finding of tenuousness, “there cannot be a total
disconnect between the State’s announced interests and the statute
enacted.” Veasey, 830 F.3d at 262. There must be some measure of “fit
between the expressed policy and the provisions of the law.”
Id.
Tenuousness might be found, for example, where a law “fail[s] to correspond
in any meaningful way to the legitimate interests the State claims to have been
advancing.”
Id. at 263. Indeed, there must be more than a “dubious
connection between the State’s interests” and the challenged law.
Id.
The second step is taken if the connection between a measure relating
to voting and its justification is more than tenuous. That does not mean the
measure is upheld. Instead, under the totality of circumstances, we consider
whether a provision meaningfully corresponds to “legitimate interests the
State claims to have been advancing.” Id. By “meaningful” and
“legitimate” we mean that the measure advances that interest without
imposing pointless burdens. Specifically, we ask: (1) how substantial is the
State’s interest in the “requisite to voting” in which some “error or
omission” exists; (2) does that interest relate to “determining whether such
individual is qualified under State law to vote in such election”; and (3) under
the totality of the circumstances, what is the strength of the connection
between the State’s interest and the measure, i.e., how well does the measure
advance the interest? See
52 U.S.C. § 10101(a)(2)(B). “The issue of
substantiality” of the State’s interest “is a legal determination.” League of
United Latin Am. Citizens, 999 F.2d at 871.
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d. Materiality of an original signature
With this caselaw in hand, we now analyze Texas’s arguments to
overturn the district court’s holding that the absence of an original signature
on a voter registration form was an immaterial omission.
Texas’s first argument is that the Materiality Provision requires a
showing of racial discrimination. To hold otherwise, Texas says, presents
constitutional problems. We discussed earlier why the Materiality Provision
was not written in terms of racial discrimination. 10 The key words and
phrases are “error or omission,” “right of any individual to vote,” “on any
record or paper,” “application, registration,” and “not material in
determining whether such individual is qualified” to vote. 52 U.S.C.
§ 10101(a)(2)(B) (emphasis added). No suggestion of a requirement of racial
discrimination exists in any of that language.
Though it is clear that the target of the Materiality Provision was racial
discrimination, the manner chosen to capture the hard-to-predict variations
in “trivial reasons” was by broadly “prohibiting the disqualification of an
individual because of immaterial errors or omissions.” Civil Rights Act of
1963, H.R. Rep. No. 88-914 (1963), Part 1, at 19, reprinted in 12544 U.S.
CONG. SERIAL SET (1963). Thus, the Materiality Provision is not textually
limited to protecting only one race of voters in order to more effectively reach
subtle forms of racial discrimination, i.e., requirements that are pretexts for
racial discrimination.
_____________________
10
Elsewhere in Section 10101, Congress did plainly express this need. Section
10101(a)(1) provides that “[a]ll citizens . . . who are otherwise qualified by law to vote . . .
shall be entitled and allowed to vote . . . without distinction of race.” 52 U.S.C.
§ 10101(a)(1). When Congress “includes particular language in one section of a statute but
omits it in another . . . , it is generally presumed that Congress acts intentionally.” Keene
Corp. v. United States,
508 U.S. 200, 208 (1993) (alteration in original) (citation omitted).
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This understanding of the broader language is expressed in one of the
few scholarly articles on the Materiality Provision. Justin Levitt, Resolving
Election Error: The Dynamic Assessment of Materiality, 54 WM. & MARY L.
REV. 83 (2012). “Though the primary motivation for the sponsors of the
materiality provision was clearly the confrontation of racial discrimination,
Congress drafted the provision to embrace errors or omissions beyond those
used to discriminate based on race.” Id. at 148. While “the text of most
other sections of the Civil Rights Act of 1964 ties the relevant right in
question to racial discrimination,” id. at 149 & n.216, Congress did not place
that limitation in the Materiality Provision.
Though we find it reasonable that omitting any reference to racial
discrimination in this provision made it more effective in combatting that
scourge, there remains the issue of whether Congress had authority to
legislate so broadly. Understanding the scope of the problem Congress
sought to rectify, we must decide whether the Materiality Provision was a
“congruen[t] and proportional[]” exercise of power under the Fourteenth
and Fifteenth Amendments. 11 See City of Boerne v. Flores, 521 U.S. 507, 520
(1997).
“Congress may enact so-called prophylactic legislation that
proscribes facially constitutional conduct in order to prevent and deter
unconstitutional conduct.” Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721,
721–22 (2003). The Boerne Court quoted Justice Harlan’s 1970 conclusion
that Congress may prohibit all literacy tests under the Fifteenth Amendment
_____________________
11
The Supreme Court has not decided whether legislation enacted under the
Fifteenth Amendment on voting rights must be “congruen[t] and proportional[]” or
simply a “rational means” of executing a constitutional prohibition. Northwest Austin Mun.
Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009). The Materiality Provision satisfies
either test.
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because they “unduly lend themselves to discriminatory application.”
Boerne, 521 U.S. at 526 (quoting Oregon v. Mitchell,
400 U.S. 112, 216 (1970)
(Harlan, J., concurring in part)). We apply that reasoning here to prohibit
those acting under color of law from using immaterial omissions, which were
historically used to prevent racial minorities from voting, from blocking any
individual’s ability to vote — irrespective of racial animus. That prohibition
is a congruent and proportional exercise of congressional power.
Next, Texas argues that requiring an original signature does not “deny
the right of any individual to vote,” quoting Section 10101(a)(2), because (1)
the requirement is part of an expansion of registration methods; (2) rejected
applicants are offered a chance to cure the deficiency; and (3) there are other
registration methods apart from fax.
We cannot agree that if the relevant restriction on voting is packaged
with expansions, the restriction must be valid. Less clear is the effect of a
simple means to cure. This court’s motions panel decided that because the
absence of an original signature on the initial application still allows
registration through alternative means, the requirement was not a denial of
the right to vote. Vote.org, 39 F.4th at 306. We set aside that holding. It is
true that the immaterial requirements some of the State’s voting registrars
were using when this provision was adopted left no alternatives, from simple
misspellings to requiring Black applicants to analyze long sections of the
Constitution. See H.R. Rep. 88-914 (1963), Part 2, at 5. Our doubt about the
efficacy of an ability to cure is that the need to cure an immaterial requirement
creates a hurdle for — even if it is not itself a final denial of — the right to
vote. That issue is left open for a later case. We do not rely today on the fact
alternatives exist if the initial registration fails.
The State also seemingly argues that any requirement in State law that
is a prerequisite to voting is “material” because it is, by definition, a
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component of someone’s qualifications to vote. The argument is that “in
Texas, an individual is qualified to vote only if she is registered and to register
via fax she must comply with the [W]et [S]ignature [R]ule.” Thus, Texas
concludes, the Wet Signature requirement is “material” because without a
wet signature, a “person is not qualified to vote under state law.”
We reject that States may circumvent the Materiality Provision by
defining all manner of requirements, no matter how trivial, as being a
qualification to vote and therefore “material.” The Materiality Provision is
a standard that a State’s voter registration requirements must satisfy. The
central question here is whether an original signature is material to
“determining whether such individual is qualified” to vote, giving weight to
the State’s policy for the provision unless it is too tenuous.
Now that we have rejected the arguments that would avoid actually
analyzing the materiality of an original signature, we examine what Texas
argues makes an original signature material.
To restate, Section 10101(a)(2)(B) refers to matters that are material
in deciding whether an “individual is qualified under State law to vote.”
What makes an individual qualified to vote under Texas law? By statute,
there are age, citizenship, residency, capacity, and criminal history
qualifications. TEX. ELECT. CODE § 11.002. There are similar qualifications
for eligibility to register. § 13.001. Undeniable, though, is a premise for all
the statutory qualifications: Are the individuals who are trying to register
actually who they say they are? Texas argues that requiring an original
signature assists in meeting this voting qualification.
Voter identification was the subject of the Supreme Court’s opinion
we discussed earlier that approved Indiana’s photo identification law. See
Crawford, 553 U.S. at 204. Even in our en banc Veasey opinion that invalidated
a statutory requirement for voter identification, we found “[t]he State’s
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stated purpose in passing [a voter-identification statute] centered on
protection of the sanctity of voting, avoiding voter fraud, and promoting
public confidence in the voting process. No one questions the legitimacy of
these concerns as motives.” Veasey, 830 F.3d at 231. After remand and a
revision in the law, we upheld the requirements. Veasey v. Abbott,
888 F.3d
792, 796, 802–03 (5th Cir. 2018).
Voter integrity is the principal justification that Texas argues to
support the requirement of an original signature. As a matter of law, we
conclude that is a substantial interest. Is that substantial interest, though,
more than tenuously connected to the requirement of an original signature?
Texas says it is. It argues that an original signature helps assure that
an applicant meets the substantive requirements to vote that are listed above
where the signature is to be placed. The following statements appear directly
above the signature block in the registration forms in this record:
I understand that giving false information to procure a voter
registration is perjury, and a crime under state and federal law.
Conviction of this crime may result in imprisonment up to one
year in jail, a fine up to $4,000, or both. Please read all three
statements to affirm before signing.
I am a resident of this county and a U.S. citizen;
I have not been finally convicted of a felony, or if a felon, I have
completed all of my punishment including any term of
incarceration, parole, supervision, period of probation, or I
have been pardoned; and
I have not been determined by a final judgment of a court
exercising probate jurisdiction to be totally mentally
incapacitated or partially mentally incapacitated without the
right to vote.
Screenshots taken using Vote.org’s app reveal that users did not see
those notices when they completed their applications. The first paragraph of
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warnings concerning perjury, imprisonment, and fines is required by statute
to appear on the application form. See TEX. ELECT. CODE § 13.122(a)(1),
(13). The form also may contain any information “considered appropriate
and required by the secretary of state.” § 13.122(a)(14). These statements
affirm the substantive qualifications needed to vote under Texas law. See
§ 11.002.
It is true that no statute requires those warnings to appear next to
where a voter is to sign; distance between the two would potentially dilute
the wet signature’s effectiveness. One statute, though, requires the
Secretary of State to “have the official application forms for registration by
mail printed” and mandated that the Secretary would “furnish the forms
without charge to each registrar.” § 13.121(c). A copy of that form was
attached to Texas’s motion for summary judgment. The space for a
signature is in the same numbered block of the form as the warnings and
directly below them. Even though the requirements that the form contain
the warnings and that it be completed with an original signature are in
different statutory sections, it is reasonable to assume the legislature knew
the structure of the form when it decided in 2021 to require an original
signature.
We accept what Texas is arguing now, that a reasonable
understanding of the legislative judgment is that physically signing the form
with the warnings in front of the applicant, threatening penalties for perjury
and stating the needed qualifications, has some prospect of getting the
attention of many applicants and dissuading false statements that an
electronic signature, without these warnings, does not. Even beyond the
appearance of the printed warnings, Texas insists — echoing the motions
panel — that applying an original signature to a voter registration form carries
“solemn weight” that an imaged signature does not. Vote.org, 39 F.4th at
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308. Texas is allowed to have doubts about technological substitutes, at least
when those doubts fit within the strictures of the Materiality Provision.
Signing an application is related to voting qualifications. The district
court agreed: “Texas provides abundant evidentiary and legal support for the
conclusion that a signature is important and vital to determine a voter’s
qualification to vote.” Vote.org, 609 F. Supp. 3d at 529. The district court
faulted Texas for “fail[ing] to show or explain why a wet signature is required
in this instance to determine the registrant’s qualification to vote.” Id.
(emphasis in original). Thus, the district court accepted the validity of
requiring a signature, just not an original one when a registrant wanted to use
Vote.org’s services.
Vote.org makes several criticisms of the effectiveness of an original
signature to deter fraud and of the consistency by which Texas imposes that
requirement. For example, Vote.org insists that original signatures are, in
practice, not used to verify anyone’s identity or to check for fraud. Vote.org
also refers to evidence that some of the county defendants conceded that
there is no practical difference between an original signature and an
electronic one. Moreover, Vote.org highlights that Texas accepts digital
signatures in other contexts, such as when individuals register to vote at the
Department of Public Safety.
Our resolution comes down to whether requiring an original signature
meaningfully, even if quite imperfectly, corresponds to the substantial State
interest in assuring that those applying to vote are who they say they are. Is
there a strong enough connection to overcome the possible denial of
registration to some applicants? We must give weight to a state legislature’s
judgment when it has created “evenhanded restrictions that protect the
integrity and reliability of the electoral process.” Crawford, 553 U.S. 189–90.
Does giving weight to that judgment allow us to conclude that an original
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signature is material to deciding the applicant’s identity — the most basic
qualification to vote? Does it have “serious or substantial import”? Material,
OXFORD ENGLISH DICTIONARY, III.6.a. Does requiring an applicant to
provide an original signature on the form with the attendant warnings and
explanations “affect a person’s decision-making”? Material, BLACK’S LAW
DICTIONARY.
We answer, first, that Texas’s interest in voter integrity is substantial.
Second, that interest relates to the qualifications to vote — are the registrants
who they claim to be? Finally, most voter registration forms likely are
completed far from any government office or employee. That limits the
methods of assuring the identity of the registrant. Though the effect on an
applicant of seeing these explanations and warnings above the signature block
may not be dramatic, Texas’s justification that an original signature advances
voter integrity is legitimate, is far more than tenuous, and, under the totality
of the circumstances, makes such a signature a material requirement.
IV. First Amendment claim
Vote.org also brought a First Amendment claim. “Where a state
election rule directly restricts or otherwise burdens an individual’s First
Amendment rights, courts apply a balancing test derived from two Supreme
Court decisions, Anderson [v. Celebrezze, 460 U.S. 780 (1983)], and Burdick
v. Takushi,
504 U.S. 428 (1992).” Voting for Am., Inc. v. Steen,
732 F.3d 382,
387 (5th Cir. 2013). The Anderson-Burdick rule requires courts to weigh the
“character and magnitude of the asserted injury” against the “precise
interests put forward by the State,” “taking into consideration the extent to
which those interests make it necessary to burden the plaintiff’s rights.”
Id.
(quoting Burdick,
504 U.S. at 434). If a “severe burden on First Amendment
rights” is created, the state rule “must be narrowly drawn to advance a state
interest of compelling importance. Lesser burdens, however, trigger less
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exacting review, and a State’s important regulatory interests will usually be
enough to justify reasonable, nondiscriminatory restrictions.” Id. (quotation
marks and citations omitted).
The district court, focusing on the original signature requirement in
isolation, found that it imposed a burden that is “more than slight.” Texas
argues that looking at the Rule in a vacuum was error; instead, the court
should have considered the panoply of registration options available to Texas
voters. In one of our opinions, we evaluated Supreme Court precedents and
explained that “the severity analysis is not limited to the impact that a law
has on a small number of voters.” Richardson v. Tex. Sec’y of State, 978 F.3d
220, 236 (5th Cir. 2020) (examining Crawford,
553 U.S. 181). Vote.org cites
a Sixth Circuit case for the proposition that restrictions should be looked at
only “from the perspective of [the] affected electors.” Mays v. LaRose,
951
F.3d 775, 785 (6th Cir. 2020). Mays’s statement, however, was confined to
laws that effect “disparate treatment” because they are facially
discriminatory. Id. at 785. By contrast, the Wet Signature Rule here is
generally applicable. Cf. Crawford,
553 U.S. at 207 (Scalia, J., concurring in
the judgment) (“[A] generally applicable law with disparate impact is not
unconstitutional.”).
The original signature requirement, then, must be viewed in light of
other available registration options, including submissions via Department of
Public Safety, direct mail, personal delivery, and volunteer deputy registrars.
TEX. ELEC. CODE §§ 13.002(a), 13.031, 13.038, 13.041. Accounting for these
other options, the burden imposed by the requirement is only “slight.”
Crawford, 553 U.S. at 191.
Texas argues that the requirement advances the State’s interest in
multiple respects. It guarantees that registrants attest to meeting the
qualifications to vote and impresses upon registrants “the seriousness” of
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registering. It also ensures security and reliability that a third-party app,
Texas says, cannot provide.
Texas’s interests in reliability and fraud deterrence are “legitimate.”
Id. at 191, 196. As described above, original signatures may dissuade
improper individuals from registering. Further, Texas may prefer the
uniformity that original signatures provide, especially if that uniformity
produces signatures that are “superior” and less prone to technical defects
than those gathered by third-party apps. That Texas allows electronic
submissions via the Department of Public Safety does not necessarily alter
the calculus. Texas exerts more control over and may legitimately have more
confidence in that department’s systems.
Where the challenged law “imposes only a limited burden,” the
constitutional inquiry grants state governments considerable leeway. See id.
at 203. Texas’s interests in ensuring reliability and reducing fraud are
“sufficiently weighty” to protect the Wet Signature Rule from constitutional
attack. See
id. at 190–91.
We REVERSE and RENDER judgment for the defendants.
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Stephen A. Higginson, Circuit Judge, dissenting:
I agree in large part with the majority opinion’s analysis. I agree with
the panel majority that Vote.org has Article III standing; that it can privately
enforce section 101 of the Civil Rights Act of 1964 (the “Materiality
Provision”), 52 U.S.C. § 10101(a)(2)(B); that a Materiality Provision claim
does not require evidence of racial discrimination; that a chance to cure
rejected applications does not render an immaterial provision material; and
that a state may not circumvent the Materiality Provision by defining any
trivial requirement as a “material” qualification to vote. But I cannot agree
that Texas’s “wet signature” requirement 1—which Texas officials
conceded serves “no practical purpose”—is “material in determining
whether [a Texan] is qualified under [Texas] law to vote.”
52 U.S.C.
§ 10101(a)(2)(B). Because Texas’s wet-signature requirement violates the
Materiality Provision, I must therefore respectfully dissent.
The district court aptly described Vote.org’s mission and outreach
activities as including: “(1) us[ing] technology to simplify political
engagement, increase voter turnout, and strengthen American democracy;
(2) work[ing] to support low-propensity voters, including racial and ethnic
minorities and younger voters who tend to have lower voter-turnout rates;
and (3) help[ing] Texans register to vote and verify registration status.”
Vote.org’s app “is critical to ensure that voters with limited access to
_____________________
1
Like the parties and the majority, I will refer to § 13.143(d-2) of the Texas Election
Code as the “wet signature” requirement. Section 13.143(d-2) provides:
For a registration application submitted by telephonic facsimile machine
to be effective, a copy of the original registration application containing the
voter’s original signature must be submitted by personal delivery or mail
and be received by the registrar not later than the fourth business day after
the transmission by telephonic facsimile machine is received.
Tex. Elec. Code Ann. § 13.143(d-2) (West 2023).
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printers or mailing facilities, or who otherwise need assistance to register to
vote, have meaningful opportunities to do so.” Complaint at 4, Vote.org v.
Callanen, 609 F. Supp. 3d 515 (W.D. Tex. 2022) (No. 5:21-CV-649), ECF
No. 1. Vote.org seeks to maximize registration of Americans eligible to vote,
yet its effort to engage Americans in self-government faces legal hurdles
around the country. See, e.g., Vote.org v. Ga. State Election Bd., No. 1:22-CV-
01734-JPB,
2023 WL 2432011 (N.D. Ga. Mar. 9, 2023); Vote.org v. Byrd, No.
4:23-cv-111-AW-MAF (N.D. Fla. June 13, 2023).
I.
The majority invokes a line of constitutional vote-denial cases,
including Crawford v. Marion County Election Board, 553 U.S. 181 (2008), for
the proposition that “[s]tates have considerable discretion in establishing
rules for their own elections.” Op. 26-27 (citing Crawford,
553 U.S. 181;
Anderson v. Celebrezze,
460 U.S. 780 (1983); and Burdick v. Takushi,
504 U.S.
428 (1992)). But we have previously recognized that Crawford “only
considered a First and Fourteenth Amendment challenge, which involves a
different analytical framework than what we use for [statutory] claims.”
Veasey v. Abbott,
830 F.3d 216, 249 (5th Cir. 2016) (en banc). And the
Materiality Provision expressly limits states’ purported “considerable
discretion”: States cannot “deny the right of any individual to vote in any
election because of an [immaterial] error or omission on any record or paper
relating to any application, registration, or other act requisite to voting.”
52
U.S.C. § 10101(a)(2)(B). The “considerable deference to be given to [state]
election procedures” thus has no place in a materiality analysis. Op. 26.
The majority likewise borrows the “tenuousness” factor from the
multifactorial test in Thornburg v. Gingles, 478 U.S. 30 (1986)—which applies
to section 2 claims under the Voting Rights Act—in its materiality analysis.
The Gingles factors are “used to help determine whether there is a sufficient
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causal link between the disparate burden imposed and social and historical
conditions produced by discrimination.” Veasey, 830 F.3d at 245. Unlike a
section 2 claim, though—as the majority recognizes—a Materiality Provision
claim need not allege any evidence of discrimination. Op. 35-37. More
importantly, nothing in the Materiality Provision’s text or existing case law
requires plaintiffs to show a “disparate burden” on the right to vote; instead,
plaintiffs need only demonstrate that the state’s procedural requirement “is
not material in determining whether” they are “qualified” to vote.
52 U.S.C.
§ 10101(a)(2)(B). Accordingly, reliance on the Gingles factors is inapposite
in the materiality context. Cf. Schwier v. Cox,
340 F.3d 1284, 1294 (11th Cir.
2003) (explaining that the Materiality Provision “was intended to address
the practice of requiring unnecessary information for voter registration with
the intent that such requirements would increase the number of errors or
omissions on the application forms, thus providing an excuse to disqualify
potential voters”); Migliori v. Cohen,
36 F.4th 153, 163 (3d Cir.) (“Fraud
deterrence and prevention are at best tangentially related to determining
whether someone is qualified to vote. But whatever sort of fraud deterrence
or prevention this requirement may serve, it in no way helps the [state]
determine whether a voter’s age, residence, citizenship, or felony status
qualifies them to vote.”), cert. granted, judgment vacated sub nom. Ritter v.
Migliori,
143 S. Ct. 297 (2022).
II.
The crux of the majority’s materiality analysis reduces to one
sentence: “Texas says it is.” Op. 39. But even if we accept the majority’s
importation of Crawford and Gingles into the materiality context, deference
to Texas’s election procedures cannot save the wet-signature requirement.
The majority characterizes the second step of the tenuousness analysis as
requiring “that the measure advances [the state’s] interest without imposing
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pointless burdens.” Op. 34. But as the district court carefully found,
factually, the wet-signature requirement is undisputedly pointless.
The district court found the following undisputed facts: County
registrars admitted that “they do not use a wet signature at any time or with
any form of voter registration submission to determine a voter’s qualification
to vote.” They “do not compare the telephonic-facsimile submitted
signature against the wet signature, nor do they use either signature for
identity verification purposes.” In fact, they typically destroy the original
application once they have entered the applicant’s information into their
computer system and saved an image of the signature.
The district court found that when county officials “investigate
reported or suspected voter fraud,” they use only “a scanned image of the
registration signature[], not the original, wet signature.” Indeed, “[a]ny
fraud investigation is conducted completely electronically” and “[a]t no time
is an original, wet signature used.”
Tellingly, officials conceded that there is no “difference in purpose or
function between a ‘wet ink’ signature and an electronic or imaged
signature.” Texas has no problem accepting registration applicants’
signatures in electronic form when completed at Texas Department of Public
Safety offices. Nor does Texas object to the use of electronic signatures in
contracts, advance health directives, divorce decrees, and real-property
closings. See Tex. Bus. & Com. Code Ann. § 322.007(d) (West 2023);
Tex. Health & Safety Code Ann. § 166.011 (West 2023); Bartee v.
Bartee, No. 11-18-0017-CV,
2020 WL 524909, at *3 (Tex. Ct. App. Jan. 31,
2020);
Tex. Prop. Code Ann. § 12.0013 (West 2023). The record
contains a simple explanation for Texas’s singular interest in a wet signature
in the context of registration applications submitted by fax machine: Texas
officials explicitly drafted § 13.143(d-2) to prevent the use of Vote.org’s e-
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sign tool. Just like the states’ procedural requirements in Schwier and
Migliori, the immateriality of Texas’s wet-signature requirement is “fairly
obvious.” Op. 25.
And there’s the rub: Although I suppose it might hypothetically be
possible that a wet-signature requirement could materially determine whether
a voter is qualified under Texas law, Texas—and the majority—cannot point
to any evidence of the requirement’s materiality in the substantial record
before us, on which we must decide this case. Instead, Texas officials’
admissions that they do not use the wet signature in any capacity to
determine a voter’s qualifications “slams the door shut on any argument that
[a wet signature] is material.” Migliori, 36 F.4th at 164.
III.
Even if we accept the majority’s application of Crawford and Gingles
to Materiality Provision claims, and even if we put to one side the factual
immateriality of the wet-signature requirement, the majority’s analysis still
fails on its own terms. Texas might have had an argument that Vote.org’s
app implicates § 13.122(a) of the Texas Election Code if the app’s electronic
registration application form omits the prescribed warning statements, but
Texas did not make that argument and, regardless, that has nothing to do with
the wet-signature requirement. See Tex. Elec. Code Ann.
§ 13.122(a)(1), (13) (West 2023) (requiring, among other statements “on an
officially prescribed registration application form,” the following two
statements: (1) “I understand that giving false information to procure a voter
registration is perjury and a crime under state and federal law” and (2) “a
statement warning that a conviction for making a false statement may result
in imprisonment for up to the maximum amount of time provided by law, a
fine of up to the maximum amount provided by law, or both the
imprisonment and the fine”). By placing the weight of its materiality analysis
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on § 13.122(a)’s required statements, the majority effectively acknowledges
that the wet-signature requirement is itself immaterial. See Op. 39-41.
That is because the “solemnity” argument put forth by Texas (and
accepted by the majority) is distinct from the wet-signature requirement.
Nothing ties the wet signature itself to the statements above the signature
block. In fact, Texas law does not even dictate where the prescribed
statements are to be included in the registration application form. See Tex.
Elec. Code Ann. § 13.122(a) (West 2023). That does not change based
on whether a person signs with a pen or an electronic signature. And there is
no evidence in the record that the wet signature itself—as opposed to a
digitally imaged signature—adds any sort of “solemnity.” Indeed, the
majority’s assertion that the wet-signature requirement is material hinges on
“the effect on an applicant of seeing these explanations and warnings above
the signature block.” Op. 42; see also Op. 40 (describing Texas’s
“solemnity” argument as “signing the form with the warnings in front of the
applicant, threatening penalties for perjury and stating the needed
qualifications, has some prospect of getting the attention of many applicants
and dissuading false statements that an electronic signature, without these
warnings, does not” (emphasis added)).
The majority thus loses sight of the Texas law at issue in this case:
Vote.org did not challenge the materiality of § 13.122(a); it challenged the
materiality of § 13.143(d-2). Even if Vote.org’s app might have implicated
§ 13.122(a), the wet-signature requirement—codified in a separate provision
of the Texas Election Code—has nothing to do with those warnings. Again,
it requires only that “a copy of the original registration application containing
the voter’s original signature” be submitted to the registrar within four
business days of “the transmission by telephonic facsimile machine.” Tex.
Elec. Code Ann. § 13.143(d-2) (West 2023).
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Because the wet-signature requirement is unrelated to the warning
statements in § 13.122(a) on which the majority rests its materiality holding,
I agree with the district court and see nothing to sustain the wet-signature
requirement: No evidence in the record supports—or even peripherally
suggests—that the wet signature itself is material in determining whether a
Texan is qualified to vote. Quite the contrary. Texas officials explicitly
drafted § 13.143(d-2) to prevent the use of Vote.org’s e-sign tool.
Consequently, the wet-signature requirement violates the Materiality
Provision and the district court correctly enjoined its enforcement.
IV.
I would AFFIRM the district court’s grant of summary judgment for
Vote.org on its statutory claim, and, therefore, I would not reach the
constitutional claims.
51
