Vote.Org v. Callanen

39 F.4th 297

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 July 2, 2022

Uzoma Nkem Nkwonta, Christopher D. Dodge, Elias Law Group, L.L.P., Washington, DC, Jonathan Patrick Hawley, Elias Law Group, L.L.P., Seattle, WA, John Russell Hardin, Esq., Perkins Coie, L.L.P., Dallas, TX, for Plaintiff—Appellee.

Judd Edward Stone, II, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Michael Abrams, Office of the Attorney General for the State of Texas, Austin, TX, Cory A. Scanlon, Esq., Office of the Attorney General for the State of Texas, General Litigation Division, Austin, TX, for Intervenor Defendant—Appellant Ken Paxton.

Autumn Hamit Patterson, Robert E. Henneke, Texas Public Policy Foundation, Austin, TX, Chance Weldon, Austin, TX, Intervenor Defendants—Appellants Lupe C. Torres, and Terrie Pendley.

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Edith H. Jones, Circuit Judge:

Vote.org sued several county election administrators seeking to enjoin enforcement of a recently enacted Texas Election Code provision that, in practice, makes useless the web application it developed to allow Texas voters to register electronically. The district court granted a permanent injunction, concluding that Vote.org adequately showed that the provision violates both the Civil Rights Act and the Constitution. The defendants seek a stay pending appeal from this court. We conclude that the defendants have met their burden for such extraordinary relief and exercise our discretion to GRANT a stay pending appeal.

I.

In virtually every state, those eligible to vote must register before casting a ballot. To register in Texas, applicants need only "submit an application to the registrar of the county in which the [applicant] resides." Tex. Elec. Code § 13.002(a). That application "must be in writing and signed by the applicant." Tex. Elec. Code § 13.002(b).

Applicants have several ways to "submit" their application to the county registrar. Most straightforwardly, an applicant may submit the application directly to the county registrar by personal delivery or mail. Tex. Elec. Code § 13.002(a). Texas also designates as certain governmental offices, such as the Department of Public Safety and public libraries, as "voter registration agencies" and requires them to accept and deliver completed applications to the county registrar. Tex. Elec. Code §§ 20.001, 20.035. Further, counties may appoint volunteer "deputy registrars" to distribute and accept applications on the county registrar's behalf. Tex. Elec. Code §§ 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. Tex. Elec. Code § 13.073.

In 2013, the Texas Legislature passed, and the Governor signed, legislation that expanded an applicant's options for submitting a voter registration application. The legislation allowed an applicant to transmit a registration form to the county registrar via fax, so long as they delivered or mailed a hardcopy of the application to the registrar within four days of the fax transmission. 2013 Tex. Sess. Law Serv. 1178. The application is considered submitted to the registrar "on the date the [fax] transmission is received ...." Id. The requirement that an applicant submit a copy of by personal delivery or mail within four days was codified at Tex. Elec. Code § 13.143(d-2).

Vote.org is a non-profit, non-membership organization that seeks to simplify and streamline political engagement by, for example, facilitating voter registration. In 2018, Vote.org launched a web application that purported to allow a person to complete a voter registration application digitally. A user need only supply the required information and an electronic image of her signature and the web application would assemble a completed voter registration application. The web application would then transmit the completed form to a third-party fax vendor, who would transmit the form via fax to the county registrar, and another third-party vendor, who would mail a hardcopy of the application to the county registrar.

During the 2018 election cycle, Vote.org piloted its web application in Bexar, Travis, Cameron, and Dallas counties. Other counties rejected its invitation to participate. The pilot program was an unmitigated disaster. Because of its poor design, many of the voter registration applications assembled using the web application contained signature lines that were blank, blacked out, illegible, or otherwise unacceptable. Moreover, the web application failed to fax many of the voter registration applications to the relevant registrar's office.

After encountering difficulties with the pilot program, the Cameron County Elections Administrator sought the Secretary of State's guidance on whether Vote.org's web application complied with the Texas Election Code. Because applications submitted using the web application lacked an original, "wet" signature, the Secretary of State's office advised that those applications were incomplete. Consequently, any applicant who submitted a voter registration application using Vote.org's web application needed to be notified and given an opportunity to cure the deficiency in accordance with Tex. Elec. Code § 13.073. The Secretary of State later issued a public statement to the same effect. Vote.org notified users of its web application that their applications would not be processed unless they cured the signature defect.¹ Vote.org stated that it was "truly, deeply, sorry for [the] inconvenience."

Several years later, during the 2021 Legislative session, Texas passed House Bill 3107, which clarified several provisions in the Election Code. 2021 Tex. Sess. Law Serv. 1469. Critically, the bill amended Tex. Elec. Code § 13.143(d-2) to specify that for "a registration application submitted by [fax] to be effective, a copy of the original registration application containing the voter's original signature must be submitted by personal delivery or mail" within four days. Id.

Vote.org then brought this lawsuit under 42 U.S.C. § 1983 against four county election officials seeking to enjoin § 13.143(d-2)'s wet signature requirement. Specifically, Vote.org argues that the wet signature requirement violates § 1971 of the Civil Rights Act of 1964, codified at 52 U.S.C. § 10101(a)(2)(B), because it is immaterial to an individual's qualification to vote. Vote.org also contends that the wet signature requirement unduly burdens the right to vote in violation of the First and Fourteenth Amendments. Attorney General Paxton and others intervened to defend § 13.143(d-2)'s constitutionality. After extensive discovery, the defendants and Vote.org filed competing motions for summary judgment.

The district court denied the defendants' motion and granted Vote.org's. Echoing an earlier ruling on a motion to dismiss for lack of jurisdiction, the district court held that Vote.org had organizational and statutory standing. As to the merits, the district court concluded that the wet signature requirement violates § 1971 because an original, wet signature is "not material" to an individual's qualification to vote. Whether a registration form mailed to the county registrar's office after being faxed contains a wet signature, the district court noted, is distinct from the material requirement that the form be "signed by the applicant." Furthermore, the district court reasoned, Vote.org showed that the county registrars do not use the wet signatures for any purpose, only electronically stored versions of the signatures, and Texas law does not enumerate a wet signature as one of the qualifications for voter registration. The district court also held that the wet signature requirement violates the First and Fourteenth Amendments. Importantly, the district court concluded as a threshold matter that the wet signature rule implicates the right to vote. Then, the district court weighed "the character and magnitude of the asserted injury" to the right to vote against "the precise interests put forward by the State" and concluded that there was "no valid justification" for the burden. Ultimately, the district court granted a permanent injunction.

The defendants sought a stay pending appeal, which the district court denied. The defendants now seek the same relief from this court. Based on the standard and reasons articulated below, we conclude the defendants have met their burden and are entitled to a stay pending appeal.

II.

To determine if a party is entitled to a stay pending appeal, this court considers "(1) whether the applicant has made a strong showing of likelihood to succeed on the merits; (2) whether the movant will be irreparably harmed absent a stay; (3) whether issuance of a stay will substantially injure other interested parties; and (4) where the public interest lies."

Thomas v. Bryant , 919 F.3d 298, 303 (5th Cir. 2019) (citing Nken v. Holder , 556 U.S. 418, 434, 129 S. Ct. 1749, 1761, 173 L.Ed.2d 550 (2009) ). Addressing first the defendants' likelihood of success on the merits and then the other stay factors, we conclude that the defendants have met their burden. We therefore exercise our discretion in granting a stay pending appeal.

A.

The defendants contend that they are likely to succeed on the merits for three reasons: Vote.org lacks standing; the wet signature requirement (a) does not deny anyone the right to vote and (b) is material to determining whether an individual is qualified to vote; and the wet signature requirement does not burden the right to vote and, even if it...