Vote.org v. Callanen

89 F.4th 459

VOTE.ORG, Plaintiff—Appellee, v. Jacquelyn CALLANEN; Et Al., Defendants, v. 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.

No. 22-50536

United States Court of Appeals, Fifth Circuit

FILED December 15, 2023

Appeal from the United States District Court for the Western District of Texas, USDC No. 5:21-CV-649, Jason Kenneth Pulliam, U.S. District Judge

Uzoma Nkem Nkwonta (argued), Christopher D. Dodge, Elias Law Group, L.L.P., Washington, DC, for Plaintiff-Appellee.

Lanora Christine Pettit, Office of the Texas Attorney General, Solicitor General Division, Austin, TX, Michael Abrams (argued), Office of the Attorney General, Austin, TX, for Intervenor Defendant-Appellant Ken Paxton.

Autumn Hamit Patterson (argued), Robert E. Henneke, Texas Public Policy Foundation, Austin, TX, Chance Weldon, Austin, TX, for Intervenor Defendants-Appellants Lupe C. Torres, Terrie Pendley.

Noah Bokat-Lindell (argued), Tovah Calderon, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Amicus Curiae United States of America.

Ari J. Savitzky, American Civil Liberties Union Foundation, New York, NY, Sophia Lin Lakin, American Civil Liberties Union Foundation, Voting Rights Project, New York, NY, for Amici Curiae American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Texas.

Christopher J. Merken, Dechert, L.L.P., Philadelphia, PA, for Texas State Conference of the NAACP, Louisiana State Conference of the NAACP.

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 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 postage-paid 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.

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.

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 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.

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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (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...