Voting for America, Inc. v. John Steen

Case: 12-40914 Document: 00512395979 Page: 1 Date Filed: 10/03/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 3, 2013

No. 12-40914 Lyle W. Cayce

Clerk

VOTING FOR AMERICA, INC.;

BRAD RICHEY; PENELOPE MCFADDEN;

PROJECT VOTE, INC.,

Plaintiffs-Appellees

v.

JOHN STEEN, in his Official Capacity as Texas Secretary of State,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellees Voting for America, Inc., Brad Richey, Penelope McFadden, and

Project Vote, Inc. (“Appellees”) sued Texas Secretary of State John Steen

(“Steen”)1 for declaratory and injunctive relief against several provisions of

Texas’s law regulating volunteer deputy registrars, Tex. Elec. Code Ann. § 13.031

et seq. (“VDR Law”). The district court granted a preliminary injunction against

three provisions for violating the First Amendment and two provisions for

1

Steen replaced Hope Andrade as Texas Secretary of State during the pendency of this

appeal. For convenience, we refer to the prior opinions as Andrade I and II, while the

defendant is now Steen.

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violating the National Voter Registration Act (“NVRA”), 42 U.S.C. §§ 1973gg et

seq. A motions panel of this court granted a stay pending appeal. Amplifying

the motions panel’s majority opinion, we conclude that Appellees failed to

establish facial unconstitutionality of the challenged provisions. The

preliminary injunction is reversed and the case remanded for further

proceedings.

I. Background

Steen administers the VDR Law, which regulates the appointment and

activities of volunteer deputy registrars (“VDRs”), individuals trained and

empowered to receive and deliver completed voter registration applications.

After Texas amended the VDR Law in 2011, Appellees requested Steen’s

interpretation of several provisions. Unsatisfied with the answers, Appellees

filed this lawsuit seeking injunctive relief on the basis that several provisions

restrict their ability to conduct voter registration drives in violation of the First

Amendment and the NVRA.

In May 2012, Appellees moved for a preliminary injunction. After a

hearing, the district court granted the motion in part, enjoining enforcement of

the following provisions of the VDR Law:

(1) Texas Election Code § 13.031(d)(3) to the extent it forbids

non-Texas residents from serving as VDRs (the “Non-Resident

Provision”);

(2) Texas Election Code § 13.038 to the extent it prohibits

VDRs appointed in one county from serving in another county (the

“County Provision”);

(3) Texas Election Code § 13.008(a)(2) & (3) (the

“Compensation Provision”);

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(4) Texas Election Code § 13.038 to the extent it prohibits

VDRs from photocopying or scanning voter registration applications

submitted to the VDR but not yet delivered to the county registrar

(so long as no information deemed confidential under § 13.004 is

included) (the “Photocopying Provision”); and

(5) Texas Election Code § 13.042 to the extent it prohibits

VDRs from sending completed voter registration applications via

United States mail (the “Personal Delivery Provision”).2

Steen appealed and moved for a stay pending appeal, which the district

court denied. A motions panel of this court granted the stay after hearing oral

argument. The U.S. Supreme Court denied Appellees’ emergency application to

vacate the stay pending appeal. Voting for Am., Inc. v. Andrade, 133 S. Ct. 99

(2012) (Justice Sotomayor would have granted the application in part).

On September 26, 2012, the motions panel issued an unpublished opinion

explaining its reasons for granting the stay, along with a dissenting opinion.

Voting for Am., Inc. v. Andrade, 488 F. App’x 890 (5th Cir. 2012) [hereinafter

Andrade II] (unpublished). Although we are not bound by the ruling of motions

panel in the same case, see Mattern v. Eastman Kodak Co., 104 F.3d 702, 704

(5th Cir. 1997), we substantially agree with the majority’s analysis, and we

conclude that Appellees have not established a strong likelihood of prevailing on

the merits of their claims.

II. Standard of Review

“To be entitled to a preliminary injunction, the applicants must show (1) a

substantial likelihood that they will prevail on the merits; (2) a substantial

2

The County, Photocopying, and Personal Delivery provisions have been in effect since

1985. The Non-Resident and Compensation provisions passed in 2011.

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threat that they will suffer irreparable injury if the injunction is not granted;

(3) their substantial injury outweighs the threatened harm to the party to be

enjoined; and (4) granting the preliminary injunction will not disserve the public

interest.” Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d

570, 574 (5th Cir. 2012) (internal citation omitted). This court has repeatedly

cautioned that “a preliminary injunction is an extraordinary remedy which

should not be granted unless the party seeking it has ‘clearly carried the burden

of persuasion on all four requirements.’” Id. (quoting Lake Charles Diesel, Inc.

v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir. 2003)). We review a district

court’s ultimate issuance of a preliminary injunction for an abuse of discretion.

Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir. 2011). “As to each element of the

district court’s preliminary-injunction analysis, however, the district court’s

findings of fact are subject to a clearly-erroneous standard of review, while

conclusions of law are subject to broad review and will be reversed if incorrect.”

Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 267 (5th Cir. 2012)

(internal quotations omitted).

III. Discussion

Initially, we address the constitutional challenges concerning three VDR

provisions, and we then move to the alleged conflict between two other

provisions and federal law.

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A. First Amendment

Principles of judicial restraint must be employed before a federal court

may declare a state law unconstitutional. Although their briefing conveys some

ambiguity, Appellees essentially assert the facial unconstitutionality of the

Non-Resident, County, and Compensation provisions. Courts generally disfavor

facial challenges, and for good reason. “[F]acial challenges threaten to short

circuit the democratic process by preventing laws embodying the will of the

people from being implemented in a manner consistent with the Constitution.”

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128

S. Ct. 1184, 1191 (2008). With the exception of First Amendment cases, a facial

challenge will succeed only if the plaintiff establishes that the act is invalid

under all of its applications. United States v. Salerno, 481 U.S. 739, 745,

107 S. Ct. 2095, 2100 (1987). The standard for facial challenges in First

Amendment cases is different, although still daunting. A law implicating the

right to expression may be may be invalidated on a facial challenge if “a

substantial number of its applications are unconstitutional, judged in relation

to the statute’s plainly legitimate sweep.” United States v. Stevens, 130 S. Ct.

1577, 1587 (2010) (quoting Washington State Grange, 552 U.S. at 449, n.6,

128 S. Ct. at 1191 n.6 ). Other relevant limits on our authority were well stated

by the motions panel majority:

Our task as a federal court is, to the extent possible, to construe the

provisions to avoid a constitutional conflict. See, e.g., Ohio v. Akron

Ctr. for Reprod. Health , 497 U.S. 502, 514, 110 S. Ct. 2972, 2980

(1990). A federal court should not lightly enjoin the enforcement of

a state statute. Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir.

1988). The determination of whether a democratically enacted

statute is constitutional on its face requires that “every reasonable

construction must be resorted to [ ] in order to save a statute from

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unconstitutionality. “ Nat’l Fed. of Indep. Bus. v. Sebelius, U.S.

, 132 S. Ct. 2566, 2594 (2012). In this vein, [Steen’s]

interpretation must be accorded some meaningful weight, as [he] is

the official charged with enforcing the statute. See Bellotti v. Baird,

428 U.S. 132, 143, 96 S. Ct. 2857, 2864(1976). We defer to [his]

interpretation of how the law is to be enforced, so long as it does not

conflict with the statutory text. See Hamer v. Musselwhite, 376 F.2d

479, 481 (5th Cir. 1967) (deferring to the city’s interpretation of an

ordinance because city officials are charged with enforcing the

statute and are the ones who must apply it).

Andrade II, 488 F. App’x at 895.

Under the federalist structure of the United States, the states are

responsible for regulating the conduct of their elections. It is well recognized

that state regulations will invariably affect “the individual’s right to vote and his

right to associate with others for political ends.” Anderson v. Celebrezze,

460 U.S. 780, 788, 180 S. Ct. 1564, 1570 (1983). 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, supra, and Burdick v. Takushi, 504 U.S. 428, 112 S. Ct. 2059 (1992).

Using the Anderson/Burdick balancing test, the court “must first consider the

character and magnitude of the asserted injury to the rights protected by the

First and Fourteenth Amendments that the plaintiff seeks to vindicate.”

Anderson, 460 U.S. at 789, 103 S. Ct. at 1570. Next, the court “must identify and

evaluate the precise interest put forward by the State as justifications for the

burden imposed by its rule.” Id. In passing judgment, the court “must weigh

‘the character and magnitude of the asserted injury to the rights protected by the

First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against

‘the precise interests put forward by the State as justifications for the burden

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imposed by its rule,’ taking into consideration ‘the extent to which those

interests make it necessary to burden the plaintiff's rights.’” Burdick, 504 U.S.

at 434, 112 S. Ct. at 2063 (quoting Anderson, 460 U.S. at 789, 103 S. Ct. at

1570). State rules that impose a severe burden on First Amendment rights must

be “narrowly drawn to advance a state interest of compelling importance.”

Burdick, 504 U.S. at 434, 112 S. Ct. 2063 (quoting Norman v. Reed, 502 U.S. 279,

289, 112 S. Ct. 698 (1992). “Lesser burdens, however, trigger less exacting

review, and a State’s ‘important regulatory interests’ will usually be enough to

justify ‘reasonable, nondiscriminatory restrictions.’” Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 358, 117 S. Ct. 1364, 1370 (1997) (internal

citations omitted). Thus, Anderson/Burdick provides no “litmus-paper test” that

excuses courts reviewing election-related free expression cases from the “hard

judgments” common in ordinary litigation. Anderson, 460 U.S. at 789–90.

Here, Appellees face a threshold problem. As the party invoking the First

Amendment’s protection, they have the burden to prove that it applies. Clark

v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S. Ct. 3065, 3069

n.5 (1984). In Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,

547 U.S. 47, 66, 126 S. Ct. 1297, 1310 (2006), the Supreme Court reiterated that

the First Amendment protects speech as well as certain kinds of conduct.

However, the Court went on to underscore that only conduct that is “inherently

expressive” is entitled to First Amendment protection. Id. at 66. To determine

whether particular conduct possesses sufficient “communicative elements” to be

embraced by the First Amendment, courts look to whether the conduct shows an

“intent to convey a particular message” and whether “the likelihood was great

that the message would be understood by those who viewed it.” Texas v.

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Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 2539 (1989) (internal quotation

marks and citation omitted). Conduct does not become speech for First

Amendment purposes merely because the person engaging in the conduct

intends to express an idea. Rumsfeld, 547 U.S. at 66, 126 S. Ct. at 1310.

The district court accepted Appellees’ argument that all of the conduct

comprising voter registration drives—urging citizens to vote, organizing the

drive, conducting voter registration, and verifying that registrations have been

accepted by the government—is “expressive conduct” protected by the First

Amendment. See Voting for Am., Inc. v. Andrade, 888 F.Supp.2d 816, 839–43

(S.D. Tex. 2012) [hereinafter Andrade I]. The court broadly concluded that these

activities implicate core political free speech and association. Wisely declining

to apply strict scrutiny, however, the court ruled that burdens imposed by the

Non-Resident Provision, the County Provision, and the Compensation Provision

were not justified under the Anderson/Burdick balancing test. Id. at 843,

851–52.

Like the motions panel majority, we are unpersuaded that the

smorgasbord of activities comprising voter registration drives involves

expressive conduct or conduct so inextricably intertwined with speech as to

require First Amendment scrutiny. Instead, we analyze the challenged Texas

provisions separately because, as will be shown, discrete steps of the voter

registration drive are in fact separable and are governed by different legal

standards. See Planned Parenthood v. Suehs, 692 F.3d 343, 349 (5th Cir. 2012)

(reviewing a temporary injunction that impermissibly grouped state regulations

on promotion of abortion with the right to affiliate with other pro-choice

supporters). Further, this mode of analysis is required by the Supreme Court,

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which, in the context of election-related burdens on free expression, has long

advised against substituting the hard judgments common in ordinary litigation

with litmus-paper tests. Anderson, 460 U.S. at 789–90. The Court also has

repeatedly explained that non-expressive conduct does not acquire First

Amendment protection whenever it is combined with another activity that

involves protected speech. See, e.g, Clark, 468 U.S. at 297–98, 104 S. Ct. at 3071

(emphasizing that the activity of camping does not become speech protected by

the First Amendment when demonstrators camp as part of a political

demonstration); Rumsfeld, 547 U.S. at 66, 126 S. Ct. at 1311 (2006) (“If

combining speech and conduct were enough to create expressive conduct, a

regulated party could always transform conduct into ‘speech’ simply by talking

about it.”); see also United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673,

1678 (1968) (“We cannot accept the view that an apparently limitless variety of

conduct can be labeled ‘speech’ whenever the person engaging in the conduct

intends thereby to express an idea.”).

1. Non-Resident and County Provisions

The Non-Resident and County Provisions restrict the appointment of

VDRs in two ways: VDRs must be Texas residents; and they may only register

voters for counties in which the VDRs have been appointed. A VDR may be

trained in one county and may apply by mail for automatic appointment in other

counties. County registrars are required to appoint everyone who applies and

satisfies the position's minimal criteria. Tex. Elec. Code Ann. § 13.031 (18 years

of age, not a felon). The County appointment requirement has existed since

1985. A state residency requirement (for petition circulators) was upheld by the

Eighth Circuit. Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir.

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2001). As these provisions have been interpreted by Steen, VDRs for each

county exclusively are allowed to receive and deliver voter registration forms to

the county offices for processing.

Appellees contend that these limits on the scope of VDRs’ appointments

prevent out-of-state-residents from acting as VDRs, inhibit the efficient

functioning of voter registration drives, and truncate their ability to conduct the

drives in violation of the First Amendment. We adopt the analysis of the

motions panel majority rejecting these propositions, and recapitulate some of it

here, together with additional reasons. See Andrade II, 488 F. App’x at 897–900.

The state does not deny that some voter registration activities involve

speech—“urging” citizens to register; “distributing” voter registration forms;

“helping” voters to fill out their forms; and “asking” for information to verify that

registrations were processed successfully. Texas neither regulates nor limits any

of this constitutionally protected speech. The district court accepted these

representations, and so do we.

To establish their premise that the First Amendment protects what VDRs

do—collect, review for completeness, and deliver completed voter registration

forms—Appellees must show why such conduct is inherently expressive or why

their “speech” is inextricably entwined with such actions. From a practical

standpoint, the activities involved in a voter registration drive can be separated

in a number of ways. For instance, experienced team leaders from out-of-state

could organize the drive and train canvassers, using local citizens as VDRs and

canvassers to complete and deliver the registration forms. Appellees in fact

testified that they prefer to use local citizens as VDRs or canvassers. Out-of-

state or out-of-county canvassers can participate anywhere, in any capacity,

except to perform the functions exclusively ascribed to trained volunteer VDRs:

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collecting, reviewing for completeness, issuing a receipt, and delivering the

completed voter registration forms to a county office. See Tex. Elec. Code Ann.

§§ 13.038–.040, 13.042. With an appropriate division of labor and organizational

forethought, no participant in the drive need suffer a detriment of the ability to

urge, advocate, interact, or persuade.

Put otherwise, while voter registration drives involve core protected

speech, they are factually distinct from the circulation of petitions addressed by

the Supreme Court in Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886 (1988), and

Buckley v. Am. Constitutional Law Fund, 525 U.S. 182, 119 S. Ct. 636 (1999).

Petitions by themselves are protected speech, and unlike a completed voter

registration form, they are the circulator’s speech. Assuming a voter registration

application is speech, it is the voter’s speech indicating his desire to be

registered. Soliciting, urging and persuading the citizen to vote are the forms

of the canvasser’s speech, but only the voter decides to “speak” by registering.

Logically, what the VDR does with the voter’s form follows the voter’s

completion of the application but is not itself “speech.” One does not “speak” in

this context by handling another person’s “speech.” As the state's brief observes,

the voter could refuse to return a registration application to the VDR and say,

"I'll mail it myself."

The motions panel majority made this point in a slightly different way:

At oral argument, Appellees urged the court to draw a close parallel

to the Supreme Court’s reasoning in Meyer, 486 U.S. at 422, finding

that the circulation of initiative petitions was a matter involving the

core political speech rights of the circulators under the First

Amendment. The analogy is improper. The circulation and

submission of an initiative petition is closely intertwined with the

underlying political ideas put forth by the petition. The petition

itself is the protected speech. Moreover, the very nature of a

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petition process requires association between the third-party

circulator and the individuals agreeing to sign. In the voter

registration context, the underlying expressive conduct (encouraging

democratic participation and voting) does not implicate a third-

party’s right to process the application. Voter registration

applications are individual, not associational, and may be

successfully submitted without the aid of another. Here, the actual

expression is not being limited.

Andrade II, 488 F. App’x at 898 n.13 (emphasis added).

Buckley and Meyer are further distinguishable because those cases

involved laws that specifically regulated the process of advocacy itself, dictating

who could speak (only unpaid circulators and registered voters) or how to go

about speaking (with name badges and subsequent detailed reports). Thus, the

Colorado law had “the inevitable effect of reducing the total quantum of speech,”

limiting “the number of voices who will convey [Plaintiffs’] message and the

hours they can speak and, therefore, limit[ing] the size of the audience they can

reach.” Meyer, 486 U.S. at 422–23, 108 S. Ct. at 1892. The motions panel

majority aptly responded to the claim that the Texas provisions are

unconstitutional for the same reason:

This argument simply does not apply. No party argues that the law

prevents anyone, regardless of domicile or VDR appointment, from

passing out registration forms and encouraging others to vote. The

size of the audience remains the same, and the “total quantum of

speech” is unaffected. While affirming the striking down of some

provisions of Colorado law in Buckley, the Court recognized an

“important interest” of the state in protecting the integrity of the

ballot initiative process there at issue and in deterring fraud.

525 U.S. at 204–05.

Andrade II, 488 F. App’x at 897 n.12.

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The Non-Resident and County provisions do not in any way restrict or

regulate who can advocate pro-voter-registration messages, the manner in which

they may do so, or any communicative conduct.3 They merely regulate the

receipt and delivery of completed voter-registration applications, two

non-expressive activities.4 See League of Women Voters of Fla. v. Browning,

575 F. Supp. 2d 1298, 1319 (S.D. Fla. 2008) (“[T]he collection and handling of

voter registration applications is not inherently expressive activity”); Garman

v. U.S. Postal Service, 509 F.Supp. 507, 510 (N.D. Ind. 1981) (noting that the

ministerial task of processing draft registration forms has no speech component

that would implicate First Amendment rights).

Similarly, because the canvassers’ speech-related activities are distinct

from both the collection and delivery of the forms and from the voters’ “speech”

in registering, the drives themselves cannot be amalgamated into protected

“expressive conduct.” In Texas v. Johnson, 491 U.S. at 406, 109 S. Ct. at 2540,

3

The motions panel majority commented that no court of appeals has held receipt and

delivery of voter registration forms alone entitled to First Amendment protection. Andrade

II, 488 F. App’x at 898. We are also unpersuaded by the lower court cases cited by the district

court that applied Meyer to laws regulating third-party registration drives because those

courts focused on the expressive aspects of plaintiffs’ conduct during voter registration drives

instead of applying this court’s approach of examining the precise conduct regulated by each

challenged law. See, e.g., League of Women Voters v. Cobb, 447 F.Supp.2d 1314, 1322 (S.D.

Fla. 2006) (finding certain requirements imposed on third-parties who collect registration

forms unconstitutional as “reducing the quantum of political speech”); Project Vote v.

Blackwell, 455 F.Supp.2d 694, 699 (N.D. Ohio 2006) (applying intermediate scrutiny to all

aspects of third-party registration laws); see also American Association of People with

Disabilities v. Herrera, 690 F.Supp.2d 1183, 1200 (D. N.M. 2010) (finding that the plaintiff's

generalized third-party voter registration activity implicated expressive conduct because it

was intended to “convey a message that voting is important”).

4

Because collecting and delivering completed registration forms are not speech, Texas

could prohibit private persons from engaging in these activities. Cf. Herrera, 690 F.Supp.2d

at 1218 (noting that New Mexico would not violate the Constitution if all voter registration

were conducted through government officials).

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for instance, the act of burning the American flag indicated the speaker’s

contempt for the Republican Party’s renomination of Ronald Reagan for

President. The conduct was the message. But if actually registering citizens to

vote is necessary to “express” the canvasser’s belief in the importance of voting,

then Appellees essentially seek a “First Amendment right not just to speak out

or engage in ‘expressive conduct’ but also to succeed in their ultimate goal

regardless of any other considerations.” Andrade II, 488 F. App’x at 898. Only

two possibilities flow from this reasoning. As the motions panel majority

suggests, throwing voter registration forms in the trash would have to be

constitutionally protected expressive conduct. Id. at 898 n.14.5 But cf. Tex. Elec.

Code Ann. § 13.043 (failure of a VDR to deliver completed applications is an

offense). Alternatively, and more sensibly, one must concede that supporting

voter registration is the canvasser’s speech, while actually completing the forms

is the voter’s speech, and collecting and delivering the forms are merely conduct.

Appellees urged that these limits on who may be VDRs and what they may

do will interfere with Appellees’ ability to conduct large-scale voter registration

5

One clear principle that can be derived from the long line of election-related speech

cases is that the degree of protection afforded under the First Amendment does not vary in

accordance with anyone’s regard for the content of the message at issue. Thus, the logic of the

Appellees extends to parties who wish to see fewer citizens vote even if it is true that

Appellees’ ultimate goal is to have more citizens vote. The prevailing cases also do not extend

First Amendment protection to an “anything goes” philosophy that seeks to insulate “any

conduct that may relate in any way to speech or expression.” Andrade II, 488 F. App’x at 897

n. 12. Here, Appellees offer a novel interpretation of the First Amendment. They contend that

expressive activity, the promotion of voter registration in this case, is contingent upon the

“success” factor of actually registering voters. While the First Amendment protects the right

to express political views, nowhere does it guarantee the right to ensure those views come to

fruition. To maintain otherwise would mean that a group seeking to discourage voting and

voter registration would have the “right” to achieve its expressive goals by throwing the

registration cards away.

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drives in Texas. But not every procedural limit on election-related conduct

automatically runs afoul of the First Amendment. The challenged law must

restrict political discussion or burden the exchange of ideas. See Initiative &

Referendum Inst. v. Walker, 450 F.3d 1082, 1100–01 (10th Cir. 2006) (en banc)

(state constitutional provision requiring a supermajority to pass a wildlife-

related ballot initiative does not implicate the First Amendment because it

neither regulated the advocacy itself nor limited the “communicative conduct

of persons advocating a position”); Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th

Cir. 1997) (concluding that a Nebraska law establishing a procedure for

calculating the number of signatures required to place an initiative on the ballot

does not implicate the First Amendment, although it “may have made it difficult

for appellants to plan their initiative campaign and efficiently allocate their

resources”); Biddulph v. Mortham, 89 F.3d 1491, 1500–01 (11th Cir. 1996)

(holding that a law did not violate the First Amendment because it did not

burden the exchange of ideas and noting most laws restricting a state’s initiative

process would not implicate the First Amendment). Whether requiring only

VDRs to collect and deliver completed voter registration applications even

incidentally affects Appellees’ activities is unclear, given the testimony that they

prefer to hire local people to handle the actual registrations. That the

requirement burdens no one’s core political speech is undisputable.

In sum, we agree with the motions panel majority’s conclusion that “there

is nothing ‘inherently expressive’ about receiving a person’s completed

application and being charged with getting that application to the proper place.”

Andrade II, 488 F. App’x at 898; see also League of Women Voters of Fla., 575

F. Supp. 2d at 1319. Because the Non-Resident and County provisions regulate

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conduct only and do not implicate the First Amendment, rational basis scrutiny

is appropriate. See District of Columbia v. Heller, 554 U.S. 570, 628 n.27,

128 S. Ct. 2817 n.27. Steen justifies the Non-Resident provisions as an

important safeguard in preventing fraud. He contends that if out-of-state

residents were to act as VDRs, they could be less easily deterred from breaking

the law because they could easily remove themselves from the jurisdiction of

state investigators and prosecutors. Steen similarly justifies the County

Provision as a means to increase accountability of VDRs by facilitating

revocation of their appointments in cases of negligence, fraud or violation of

registrants’ privacy. These are rational bases for the provisions. Cf. Jaeger,

241 F.3d at 616 (holding that “the State has a compelling interest in preventing

fraud” and that “[t]he residency requirement allows North Dakota’s Secretary

of State to protect the petition process from fraud and abuse by ensuring that

circulators answer to the Secretary’s subpoena power”).

Even assuming arguendo that the Non-Resident and County provisions

implicate First Amendment interests, they pass the Anderson/Burdick balancing

test. As a preliminary matter, there are fundamental differences in the

activities of VDRs and petition circulators. VDRs register fellow citizens to vote.

They may “advocate” and “interactively communicate” the importance of

registration, but they have a duty to the fellow citizens whose registrations they

facilitate. See, e.g., Tex. Elec. Code Ann. § 13.036(a)(2) (registrar may terminate

VDR convicted of failing to deliver applications); § 13.036(b) (registrar may

terminate VDR for failing to adequately review applications); § 13.044 (offense

for a person “purportedly” acting as a VDR without an appointment). They

assume a role carefully regulated by the state to serve the citizens who register

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to vote as well as the public interest in the integrity of the electoral body.

Petition circulators, in contrast, are not agents of the state:

Nothing in this opinion should be read to suggest that initiative

petition circulators are agents of the state. Although circulators are

subject to regulations and are accountable to the State for

compliance with legitimate controls [citation omitted], circulators

act on behalf of themselves or the proponents of ballot initiatives.

Buckley, 525 U.S. at 192 n.11, 119 S. Ct. at 642 n.11. Petition circulators’

ultimate responsibility lies in furthering their own or the sponsors’ advocacy.

To analyze VDRs’ responsibilities solely in terms of their advocacy denigrates

their statutory duty to register all prospective voters whose applications they

collect. See Tex. Elec. Code Ann. § 13.043 (making it a crime to fail to deliver

voter applications). It is one thing to say core political speech is involved when

the advocates are trying to persuade the voting public to consider supporting an

initiative or place a candidate on the ballot; it is quite another for the

“advocates” to have free rein in creating the electorate. Thus, the character of

any speech limited by the Non-Resident and County provisions is qualitatively

different from the political speech restricted by laws that affect petition

circulators.

The burdens imposed by the Non-Resident and County provisions on

canvassers’ speech are also minimal. Non-VDRs remain free to organize and run

the registration drive, persuade others to register to vote, distribute registration

forms, and assist others in filling them out. Unlike the requirements struck

down in petition circulator cases, the Texas provisions do not directly reduce the

number of voices by preventing out-of-state residents from advocating political

or civic messages. See Buckley, 525 U.S. at 193 n.15, 119 S. Ct. at 643 n.15

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(noting that “Colorado’s registration requirement would exclude approximately

964,000 unregistered but voter-eligible residents from circulating petitions”);

Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) (“[I]t is undisputable that [a

residency requirement for petition circulators] sharply limited Nader’s ability to

convey his message to Ohio voters and thereby curtailed Nader’s core political

speech.”); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir. 2000) (“By preventing

the candidates from employing millions of potential advocates to carry their

political message to the people of Illinois, the statute places a formidable burden

on the candidates’ right to disseminate their message.”). Appellees’ claim that

they may be less successful in achieving the result they advocate or in running

a registration drive in the precise way they prefer does not demonstrate that

their ability to advocate is significantly burdened by a requirement of Texas

residency for VDRs.

Although the restrictions on Appellees’ expressive voter registration

activities are not severe, the state must justify the Non-Resident and County

provisions with “important regulatory interests.” Anderson, 460 U.S. at 788, 103

S. Ct. at 1570. Steen asserts that Texas’s interest in preventing voter

registration fraud provides adequate justification. Any corruption in voter

registration affects a state’s paramount obligation to ensure the integrity of the

voting process and threatens the public’s right to democratic government. See

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196, 128 S. Ct. 1610, 1619

(2008) (“While the most effective method of preventing election fraud may well

be debatable, the propriety of doing so is perfectly clear.”); Storer v. Brown,

415 U.S. 724, 730, 94 S. Ct. 1274, 1297 (1974) (noting that a state has the power

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to engage in “substantial regulation of elections” in order to ensure elections are

fair, honest, and orderly).

As the Supreme Court has recognized, the risk posed by fraud during the

electoral process is far greater than that in either the initiative or candidate

petition process. Meyer, 486 U.S. at 427, 108 S. Ct. at 1895 (“the risk of fraud

or corruption, or the appearance thereof, is more remote at the petition stage of

an initiative than at the time of balloting”) (citing First Nat’l Bank v. Bellotti,

435 U.S. 765, 790, 98 S. Ct. 1407, 1423 (1978) (“the risk of corruption perceived

in cases involving candidate elections . . . simply is not present in a popular vote

on a public issue.”)). Indeed, Steen points to documented evidence of voter

registration fraud committed by canvassers, including those who worked for

Appellee Project Vote and its former affiliate ACORN. See, e.g., League of

Women Voters of Fla., 575 F. Supp. 2d at 1310 (noting that the State of Florida

received 13 written complaints in 2004 from “persons who registered to vote with

third-party organizations” but who “[a]t the time of voting . . . were advised they

were not registered to vote because the forms they had filled out had never been

turned in.”); Staff of the H. Comm. on Oversight & Gov’t Reform, 111th Cong.,

Follow the Money: ACORN, SEIU, and their Political Allies 49 (2010)

[hereinafter Follow the Money] (noting that a “Project Vote employee was

convicted . . . for submitting more than 400 fake voter registration

applications.”); Staff of the H. Comm. on Oversight & Gov’t Reform, 111th

Cong., Is ACORN Internationally Structured as a Criminal Enterprise? 4 (2009)

(“[N]early 70 ACORN employees have been convicted in 12 states for voter

registration fraud”).

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The district court faulted Steen for not producing evidence of “rampant

fraud” by out-of-state VDRs in pre-2011 Texas elections. Andrade I, 888

F.Supp.2d at 845. In Crawford, however, the Supreme Court upheld Indiana’s

voter ID law under the Anderson/Burdick test despite the fact that were was “no

evidence of any [impersonation] fraud actually occurring in Indiana at any time

in its history.” Crawford, 553 U.S. at 196, 128 S. Ct. at 1619. Here, as in

Crawford, Texas need not show specific local evidence of fraud in order to justify

preventive measures. See also Munro v. Socialist Workers Party, 479 U.S. 189,

195–96, 107 S. Ct. 533, 537–38 (1986) (“Legislatures . . . should be permitted to

respond to potential deficiencies in the electoral process with foresight rather

than reactively . . . .”).6

Texas’s chosen means to avert fraudulent voter registrations by requiring

state residency and county appointment for VDRs is sufficiently tailored.

Compliance with voter registration regulations begins at the county level, where

VDRs are approved, trained, and if need be, disciplined. After qualifying in one

county, a VDR may perfunctorily qualify to serve in other counties. Multi-county

qualification enables oversight of the VDR while eliminating the potential

complications of registering voters in metropolitan areas covering several

counties. Requiring that VDRs be state residents is obviously important to

maintaining any credible possibility of prosecution for registration-related

offenses. Election law violations typically carry low penalties and are hard to

6

Of course, election fraud was not unknown in Texas history, the most prominent

example being the 1948 election for the United States Senate. See Randall B. Woods, LBJ:

Architect of American Ambition 214 (2006) (“There is little doubt that fraud was involved.”);

Robert A. Caro, Means of Ascent 328-29 (1990) (describing list of 200 people—three of whom

were dead on the date of balloting—who were recorded as having voted, in alphabetical order

by last name, for Lyndon Johnson at the close of polling in Precinct 13 in Jim Wells County).

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prosecute against local violators. Requiring the state to authorize itinerant out-

of-state VDRs could render enforcement ineffective. Cf. Buckley, 525 U.S. at

196, 119 S. Ct. at 644 (not reaching the issue, but explaining the Tenth Circuit

upheld a state residency requirement for petition circulators because it “more

precisely achieved” the objective of making them eligible for subpoena and

enforcement). We conclude that Texas’s interest in preventing voter registration

fraud is “sufficiently weighty to justify the limitation[s]” on Appellees’ voter

registration activities imposed by the Non-Resident and County provisions.

Crawford, 553 U.S. at 191, 128 S. Ct. at 1616 (internal quotation and citation

omitted); see also League of Women Voters of Fla., 575 F.Supp.2d at 1325

(concluding that Florida’s interests in preventing fraud justify restrictions on

organizations’ voter registration drive activities).

The dissent disagrees with our analysis that disaggregates the advocacy

for voter registration from the mere mechanics of registration performed by

VDRs. According to the dissent, this mode conflicts with Meyer, where the Court

invalidated Colorado’s prohibition of paid petition circulators. The dissent

quotes Colorado’s argument in brief that because petition circulators were the

sole parties responsible for the act of validating voters’ signatures, their role

should not receive First Amendment protection. Brief for Appellants, Meyer,

486 U.S. 414 (No. 87-920), 1987 WL 880992, at *12.1. Judge Davis emphasizes

that the Supreme Court rejected Colorado’s argument while characterizing all

petition-related expressive conduct as core political speech. Post at _____

(quoting Meyer, 486 U.S. at 421-22, 108 S. Ct. at 1892). This reasoning draws

the wrong lessons from Meyer.

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Although Meyer characterizes the advocacy required in petition circulation

as core political speech, Meyer and Buckley also engage in detailed, fact-specific

analysis of the impact of specific regulations on the furtherance of petition

sponsors’ advocacy.7 First, in Meyer, unlike this case, the payment prohibition

deprived petition sponsors of a full opportunity to spread their views. Second,

both cases recognize, explicitly or implicitly, the propriety of various regulations

concerning even this core political speech—minimum age and affidavit of

residency for circulators; criminal penalties related to false or purchased

signatures; printed warnings on the petitions; sponsor and payment disclosures.

Finally, Meyer acknowledges that the risk of improper conduct during petition

circulation is less than in petition balloting, and the risk in petition balloting is

less than in candidate elections. Meyer, 486 U.S. at 427–28, 108 S. Ct. at 1885,

quoting First National Bank of Boston v. Bellotti, 435 U.S. 765, 790, 98 S. Ct.

1407, 1423 (1978).

In sum, contrary to the dissent, we find Meyer and Buckley distinguishable

factually, indicative of nuanced analysis mandated in this type of case, and

highly suggestive that state regulation to counter voter registration fraud should

not be hastily overturned. What the dissent ultimately neglects is that

controlling cases require the “hard judgments” that are common to ordinary

litigation, and not a “litmus-paper test.” Anderson, 460 U.S. at 789, 103 S. Ct.

at 1570; Buckley, 525 U.S. at 192, 119 S. Ct. at 642. As earlier explained, the

Residence and County Provisions, unlike the rules at issue in Meyer and

7

Meyer quotes at length from the testimony of a petition circulator: “The way we go

about soliciting signatures is that you ask the person . . . ‘Are you a registered voter?’ If you

get a yes, then you tell the person your purpose, that you are circulating a petition to qualify

the issue on the ballot in November . . . .”) (emphasis in original). Meyer, 486 U.S. at 422, n.4,

108 S. Ct. at 1892, n.4.

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Buckley, do not infringe in any way on the communicative, interpersonal aspect

of voter registration drives. But even if they do infringe on First Amendment

rights, the Texas provisions fulfill a vital role in securing the integrity of the

voter registration process and are a tailored response to the task. As a result,

Appellees’ First Amendment challenge cannot prevail.

2. Compensation Provision

The Compensation Provision of the Texas Election Code, § 13.008(a),

creates offenses if a person:

(1) compensates another person based on the number of voter registrations

that the other person successfully facilitates;

(2) presents another person with a quota of voter registrations to facilitate

as a condition of payment or employment;

(3) engages in another practice that causes another person’s compensation

from or employment status with the person to be dependent on the number of

voter registrations that the other person facilitates; or

(4) accepts compensation for an activity described by Subdivision (1), (2)

or (3).

Recognizing that these provisions are potentially overbroad, Steen interprets

subdivisions (2) and (3) of the Compensation Provision to ban (1) paying

canvassers on a per-application basis and (2) conditioning payment or

employment solely on the submission of a fixed number of applications.8 More

precisely, according to Steen, subdivision (a)(2) applies only when a quota is

“present[ed]” to a canvasser, while subdivision (a)(3) applies to any different

8

That subdivisions (1) and (4) are constitutional devices to prevent fraudulent

registrations is not disputed.

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(“another”) situation when employment is conditioned solely on a quota that has

not been presented to the canvasser.

Federal courts are required to accept a narrowing construction of a state

law in order to preserve its constitutionality. See Frisby v. Schultz, 487 U.S.

474, 483, 108 S. Ct. 2495, 2502 (1988) (construing a town ordinance “more

narrowly” in part because “[t]his narrow reading is supported by representations

of counsel for the town at oral argument”); Bellotti v. Baird, 428 U.S. 132, 143,

96 S. Ct. 2857, 2864 (1976) (noting the importance of the interpretation given by

the officials charged with enforcing the statute); see also Ohio v. Akron Ctr. for

Reprod. Health, 497 U.S. 502, 514, 110 S. Ct. 2972, 2980 (1990) (“[W]here fairly

possible, courts should construe a statute to avoid a danger of

unconstitutionality.” (citation and internal quotation marks omitted)).

The district court refused to accept the narrowing construction, reasoning

that it is plainly contradictory to the statutory language. Thus, the court held,

if Steen’s construction is accepted, subdivision (a)(3) either superfluously

overlaps subdivision (a)(2), or on its own, subdivision (a)(3) prevents the

employer from making traditional performance-based decisions about the

canvassers’ effectiveness. We disagree with these conclusions.

With respect to the district court’s opinion that Steen’s construction would

render subsection (a)(3) of the provision “superfluous,” subsection (a)(2) applies

when someone “presents another person with a quota of voter registrations to

facilitate as a condition of payment or employment.” Tex. Elec. Code Ann.

§ 13.008(a)(2) (emphasis added). Subsection (a)(3) applies when that fixed quota

is used as the sole basis for determining compensation or employment,

regardless whether it has been “presented” to the canvasser. Id. § 13.008(a)(3).

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As such, Steen’s interpretation leaves the more comprehensive language of

(a)(3) with plenty of work to do. Because the subsection readily lends itself to

this interpretation, the district court incorrectly disregarded it. Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 397, 108 S. Ct. 636, 646 (1988)

(maintaining that statues “readily susceptible” to a narrowing construction will

survive a First Amendment challenge).

The district court’s alternative interpretation is that (a)(3) overbroadly

bans performance-based work reviews. Appellees contended that their

employment decisions are chilled (and thus the quantum of their speech

burdened) because in managing canvassers’ work, they must inescapably tie

decisions for superior or subpar performance to the canvassers’ productivity in

terms of voter registrations facilitated. The district court’s interpretation is

plausible, but it is impermissible pursuant to the standards of deference we have

earlier cited.

First, the district court failed to assess whether “a substantial number” of

the applications of (a)(2) and (a)(3) are unconstitutional, judged in relation to the

provision’s “plainly legitimate sweep.” This inquiry is required in a facial

challenge on First Amendment grounds under Stevens, 130 S. Ct. at 1587. The

existence of a wide swath of constitutional applications of the provision would

suffice to prevent a facial remedy. Citizens United v. Fed. Election Comm'n,

558 U.S. 310, 331, 130 S. Ct. 876, 893 (distinguishing facial and as-applied

challenges by “the breadth of the remedy employed by the Court”); see also

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United States v. Treasury Employees, 513 U.S. 454, 477-78, 115 S. Ct. 1003, 130

(1995) (contrasting “a facial challenge” with “a narrower remedy”).9

Second, the narrowing interpretation is not contradictory to the statute, and

the court was thus required to accept it for present purposes. Subdivision (a)(2)

is premised on “presenting” a quota to the employee, a formulation that implies

direct contact in advance to warn the person of a “quid pro quota.” Subdivision

(a)(3), making employment decisions “in another practice” “dependent” on the

employee’s number of voter registrations reasonably lends itself to decisions that

are “solely dependent” on that number. Employers are familiar, through Title

VII discrimination law, with the difference between “sole” motive and “mixed

motive” decision making. Appellees cannot feign their inability to justify

reasonable employment decisions on factors other than or in addition to the

number of registrations a canvasser produces. Moreover, as a criminal statute

susceptible to more than one interpretation, this provision’s enforcement would

have to be construed with lenity. See Tex. Elec. Code Ann. § 13.008(b). The rule

of lenity reinforces the state’s proffered narrowing interpretation. Finally,

Texas’s strong severability statute, which preserves statutes even if in some

“applications” they are unconstitutional, clearly applies to the hypothetical

situations Appellees invoked. Tex. Gov’t Code Ann. § 311.032(c). Severability

is a state law issue that binds federal courts. See Leavitt v. Jane L., 518 U.S.

137, 139, 116 S. Ct. 2068, 2069 (1996).

9

Steen’s reply brief crystallizes its narrowing interpretation: “Section 13.008 allows

employers to fire cavassers for shirking and instruct them to increase their productivity. It

prohibits only employment decisions made solely on the basis of the number of applications

facilitated. Employers may consider the number of applications facilitated as part of a

contextualized evaluation of a canvasser’s performance.”

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As we must accept the state’s narrowing construction of the Compensation

Provision, we turn to the merits. Because the provision applies to all

persons–not just VDRs–and covers any activity that facilitates voter

registration, it encompasses activities that involve expression, including voter

drives where canvassers seek to persuade eligible voters to register. Further, we

assume, without deciding, that prohibiting quota-based pay is a “lesser burden,”

not subject to strict scrutiny. Prete v. Bradbury, 438 F.3d 949, 963 (9th Cir.

2006) (assessing ban on tying compensation to number of signatures obtained for

a petition as a lesser burden); Jaeger, 241 F.3d at 617–18 (declining to apply

strict scrutiny to statute banning payment per petition signature procured); see

also Person v. N.Y. State Bd. of Elections, 467 F.3d 141, 143 (2d Cir. 2006)

(finding that statute prohibiting payment of electoral petition signature

gatherers on a per-signature basis does not, by itself, violate the First

Amendment). Appellees have not made a strong showing that their facial

challenge will prevail because the Compensation Provision can apply

constitutionally to proscribe quotas or compensation incentives that reward

canvassers solely for turning in a very high number of applications, which all

parties agree can encourage fraud. Texas has a strong legitimate interest in

preventing fraud. Buckley, 525 U.S. at 204–05, 119 S. Ct. at 648. The

Compensation Provision was enacted in part to rectify deficiencies in the

previous law that created incentives, such as paying canvassers for each

application, that resulted in voter registration scandals. See Follow the Money,

supra; Tex. Elec. Comm. Rep. on H.B. 239, 82d Leg. (2011) (“In many of the

scandals, the convicted individuals specifically cited the compensation or

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performance quotas as the incentive to fraudulently complete voter registration

forms.”).

Nevertheless, the district court faulted the Compensation Provision for

being stricter than laws in other states, particularly since there is no indication

that Texas is more susceptible to voter registration fraud. Andrade I,

888 F.Supp.2d at 852. This criticism is unwarranted; neither the uniqueness

of an election law nor the state-wide prevalence of the type of fraud a law seeks

to prevent has any bearing on its constitutionality. See Crawford, 553 U.S. at

195, 128 S. Ct. at 1619 (upholding Indiana’s unique voter-ID law as a legitimate

means to combat election fraud, despite no evidence of impersonation fraud in

Indiana). In addition, the district court’s and Appellees’ analogies to Meyer,

supra, and Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008), are

inapposite. Unlike the laws struck down in those cases, the Compensation

Provision does not completely ban third-party organizations from compensating

canvassers or only permit them to pay hourly wages. To deter fraud, (a)(3)

merely prevents organizations from making compensation and employment

decisions solely based on a fixed number of applications.10

We conclude that the Compensation Provision, as narrowly construed,

does not violate the First Amendment. It is unnecessary to address Steen’s

abstention argument. Accordingly, Appellees have not demonstrated a likelihood

of success on the merits of this claim.

10

To the extent Appellees attempted to present an as-applied challenge to this

provision, we agree with and adopt the analysis of the motions panel majority that rejected

their contention. See Andrade II, 488 F. App’x at 901.

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B. NVRA

Under the Constitution’s Election Clause, Congress may enact laws that

preempt state election laws concerning federal elections. See Foster v. Love,

522 U.S. 67, 69, 118 S. Ct. 464, 466 (1977). When it does, the federal legislation

renders any conflicting state laws inoperative. See Ex parte Siebold, 100 U.S.

371, 384 (1879). “To this end, state election laws cannot ‘directly conflict’ with

federal election laws on the subject.” Andrade II, 488 F. App’x at 896 (citing

Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773, 775 (5th Cir. 2000)).

Against this background, we examine whether the challenged provisions of the

VDR Law conflict with the NVRA and require preemption.

Photocopying Provision

The NVRA mandates that “[e]ach State shall maintain for at least 2 years

and shall make available for public inspection and, where available,

photocopying at a reasonable cost, all records concerning the implementation of

programs and activities conducted for the purpose of ensuring the accuracy and

currency of official lists of eligible voters.” 42 U.S.C. § 1973gg-6(i)(1). The

Photocopying Provision states that a VDR “may distribute voter registration

application forms throughout the county and receive registration applications

submitted to the deputy in person.” Tex. Elec. Code Ann. § 38.038. As

interpreted by Steen, this provision limits VDRs’ conduct to collecting and

delivering completed applications and implicitly precludes photocopying.

Appellees contend that because completed voter registration applications

in the possession of VDRs are “public records,” the restriction against

photocopying them violates the NVRA. However, Appellees disregard a crucial

distinction: the NVRA only pertains to records “maintain[ed]” by the State,

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while the Photocopying Provision only applies to voter registration applications

in the hands of VDRs, before they are officially received or maintained by the

State. For this reason, the district court misplaced reliance on Project

Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir. 2012), a case that

specifically addressed the denial of access to voter registration applications in

the government’s long-term possession, rather than those in the hands of VDRs.

The question here is not whether such applications will be made available for

photocopying but how. Thus, we disagree with the district court’s reasoning that

the applications received and delivered by VDRs are within the “constructive

possession” of the state. For one thing, this conclusion is not supported by any

statutory text and is contrary to state law prohibiting VDRs from “maintaining”

the applications. Tex. Elec. Code Ann. § 13.038 (deputizing VDRs to receive and

deliver voter registration applications, not to “maintain” them for the state);

§ 13.042(b) (requiring VDRs to deliver the voter registration applications to the

county within five days). Moreover, allowing VDRs indiscriminately to

photocopy registration applications places at risk the private information, e.g.,

social security numbers, they contain, because Steen and counties have limited

means to enforce privacy protections against temporary volunteers. Because the

NVRA and Texas law do not conflict, Appellees cannot prevail in this

preemption claim.

Personal Delivery Provision

The NVRA requires states to “accept and use” a federal voter registration

application sent through the United States mail. 42 U.S.C. § 1973gg-4(a)(1).

The Personal Delivery Provision mandates that VDRs deliver completed voter

registration applications to the county registrar in person. Tex. Elec. Code Ann.

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§ 13.042(a). State law neither prevents prospective voters from mailing in their

voter registration applications nor prohibits counties from accepting those

applications. Significantly, county registrars must accept every application

received by mail, even those sent by VDRs in violation of the Personal Delivery

Provision. See Tex. Elec. Code Ann. §§ 13.071–.072. These facts differentiate

Texas law from the Supreme Court’s recent decision in Arizona v. InterTribal of

Arizona, 133 S. Ct. 2247 (2013), in which the Court overturned, as inconsistent

with the NVRA, the imposition of additional conditions by the state on its

acceptance of voter registrations. Also distinguishable is Charles H. Wesley

Educ. Found., Inc., v. Cox, 408 F.3d 1349, 1354–55 (11th Cir. 2005), where the

Eleventh Circuit rejected Georgia’s argument that the state could refuse to

accept voter registration applications mailed by third-party organizations that

did not meet additional state requirements. Moreover, as the court emphasized,

the NVRA “simply requires that valid registration forms delivered by mail and

postmarked in time be processed.” Id. at 1355. Texas law ensures this

requirement is met. Because the laws do not conflict, Appellees have failed to

demonstrate a substantial likelihood that the Personal Delivery Provision is

preempted by the NVRA.

CONCLUSION

Appellees have not made a clear showing that they are likely to succeed

in demonstrating that the challenged provisions of the VDR Law violate their

First Amendment rights or are preempted by the NVRA. Consequently, it is

unnecessary to address the remaining elements required for preliminary

injunctive relief. La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency,

608 F.3d 217, 225 (5th Cir. 2010). The district court’s preliminary injunction is

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REVERSED and the case REMANDED for further proceedings consistent with

this opinion.

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W. EUGENE DAVIS, Circuit Judge, dissenting.

I respectfully dissent from the majority’s decision reversing the

preliminary injunction entered by the district court barring the Texas Secretary

of State from enforcing five provisions of the Texas Election Code. The enjoined

provisions are described as follows:

(1) Texas Election Code § 13.031(d)(3) to the extent it forbids

non-Texas residents from serving as volunteer deputy registrars

(“VDRs”) (the “Non-Resident Provision”);

(2) Texas Election Code § 13.038 to the extent it prohibits

VDRs appointed in one county from serving in another county (the

“County Provision”);

(3) Texas Election Code § 13.008(a)(2) & (3) (the

“Compensation Provision”);

(4) Texas Election Code § 13.038 to the extent it prohibits

VDRs from photocopying or scanning voter registration applications

submitted to the VDR but not yet delivered to the county registrar

(so long as no information deemed confidential under § 13.004 is

included) (the “Photocopying Provision”); and

(5) Texas Election Code § 13.042 to the extent it prohibits

VDRs from sending completed voter registration applications via

United States mail (the “Personal Delivery Provision”).

The district court, following a lengthy evidentiary hearing and extensive

briefing, held that the Non-Resident Provision, the County Provision, and the

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Compensation Provision unconstitutionally interfere with the plaintiffs’ rights

under the First Amendment and the Photocopying Provision and the Personal

Delivery Provision are preempted by the National Voter Registration Act

(“NVRA”), 42 U.S.C. §§ 1973gg et seq.

In its opinion, the majority concludes that the plaintiffs’ activities affected

by the Non-Resident Provision and the County Provision are not protected

speech and, after accepting an interpretation of the Compensation Provision that

is textually unsupportable, finds that the provision does not interfere with the

plaintiffs’ First Amendment rights. The majority also disagrees with the district

court’s conclusion that the Photocopying Provision and the Personal Delivery

Provision are preempted by the NVRA.

My difference with the majority, in general, is two twofold: first, in my

view the majority takes an unsupportably restrictive view of the scope of

plaintiffs’ activity to register voters that is protected by the First Amendment.

The majority also ignores clear conflicts between two provisions of the Texas

Election Code and the NVRA. In short, I would affirm the district court’s

thorough, well-reasoned opinion.

I.

First Amendment

My disagreement with my colleagues’ treatment of this case rests in large

part on how the majority slices and dices the activities involved in the plaintiffs’

voter registration drives instead of considering those activities in the aggregate.

Ordinarily, when Project Vote and Voting for America set up a voter registration

drive, they cooperate with local organizations in the targeted area, while

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maintaining control of the process. They hire canvassers from the local

community, but also rely on experienced canvassers and organizers from out of

state to manage the drive, train employees, and demonstrate proper techniques

for voter registration. Once trained, the canvassers are deployed throughout the

targeted community to attempt to persuade eligible voters to register to vote.

Canvassers raise issues of local importance and stress that voting is a forum for

voters to voice their views. If the canvasser is successful, he provides a blank

application to the applicant and assists in completing the form. The canvasser

then collects the completed form and returns it to the organization, where it is

reviewed for completeness and signs of fraud. The non-confidential portions of

the application are then scanned or photocopied for tracking purposes and then

delivered to the appropriate registrar. The plaintiffs use the photocopy to follow

up with the registrar to verify that the registration application has been

processed and the applicant added to the voting rolls. If not, the plaintiffs follow

up as needed to correct the situation. At election time, the plaintiffs urge the

newly registered voters to actually vote and may provide transportation

assistance to the voting area.

The Secretary and the majority concede that “some voter registration

activities involve speech – ‘urging’ citizens to register; ‘distributing’ voter

registration forms; ‘helping’ voters fill out their forms; and ‘asking’ for

information to verify that registrations were processed successfully.” However,

the majority draws a line between these portions of the voter registration drive

they must concede are protected and all the other activity which they dismiss

as outside the protection of the First Amendment and simply the administrative

process of collecting and handling voter registration forms. In the words of the

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majority, “[o]ne does not ‘speak’ in this context by handling another person’s

‘speech,’” i.e., the voter registration application, which is the voter’s “speech.”

In the majority’s view, all of the plaintiffs’ activities that occur after the voter

completes the registration application are not speech. This would include

processing the application and checking it for errors, submitting it to the

appropriate registrar, following up to ensure that the application was processed

and the applicant added to the voting rolls, and encouraging the voter to

participate in subsequent elections.

Two Supreme Court cases applying First Amendment protections to laws

regulating parties engaged in similar activities reject the majority’s line-

drawing. In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S.

182 (1999), the Court struck down Colorado’s requirements that those collecting

signatures for a ballot initiative wear a badge and be registered Colorado voters.

In Meyer v. Grant, 486 U.S. 414 (1988), the Court struck down Colorado’s ban on

paying petition circulators. As the district court pointed out, it could have been

said in Buckley and Meyer “that the invalidated regulations did not prevent

anyone from actually speaking to another citizen in an attempt to persuade her

to sign a petition; rather, the regulations just governed the act of collecting the

signatures.” The Supreme Court rejected that distinction.

In Meyer, Colorado argued to the Supreme Court that the statute banning

paid petition circulators (much as Texas does in this case) did not implicate

speech. Colorado argued:

[T]he petition circulator [is] the person with the public duty to

determine the validity of the signatures of the persons who sign the

petitions. . . . The verification of signatures does not constitute

speech, and the prohibition against payment of petition circulators

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constitutes nothing more than the prohibition against payment for

the act of verifying signatures. The fact that a person voluntarily

links his conduct with a speech component does not transform the

conduct into speech.

Brief for Appellants, Meyer, 486 U.S. 414 (No. 87-920), 1987 WL 880992, at *12.

The Supreme Court rejected this argument and concluded that petition

circulation involves “interactive communication concerning political change that

is appropriately described as ‘core political speech.’” Meyer, 486 U.S. at 421-22.

Importantly, the Court did not isolate and limit the scope of its definition of core

political speech to the verbal exchange between the petition circulator and the

person whose signature was being solicited. Instead, it considered the

solicitation activity in the aggregate as core speech. Specifically, the court in

Meyer concluded that Colorado’s ban on paid petition circulators impermissibly

implicated the First Amendment by restricting political expression. The Meyer

court explained that this ban restricted core speech because it limited the voices

available to convey the message and therefore reduced the size of the audience

that the canvassers could reach, making it less likely the campaign would be

successful.

Similarly, in Buckley, the Supreme Court rejected Colorado’s argument

that collection of signatures was a ministerial act performed on behalf of the

state and therefore state regulations requiring canvassers to be Colorado

registered voters and wear badges did not implicate the First Amendment. As

Justice Thomas explained in his concurrence,

Even where a State’s law does not directly regulate core political

speech, we have applied strict scrutiny . . . because we have

determined that initiative petition circulation of necessity involves

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both the expression of a desire for political change and a discussion

of the merits of the proposed change.

Buckley, 525 U.S. at 207 (Thomas, J., concurring). Thus, even though the

Colorado regulation in Buckley did not directly regulate speech, the

requirements that solicitors wear a badge and be Colorado registered voters

were offensive in the same way the ban on paid circulators was in Meyer. Both

regulations reduced the voices available to convey political messages. Id. at 210.

The Non-Resident Provision, the County Provision, and the Compensation

Provision all limit who can participate in voter registration drives. As explained

in more detail below, these provisions, like those in Buckley and Meyer, limit the

number of voices available to convey the plaintiffs’ message. The majority

proposes methods by which the plaintiffs could organize their voter registration

drives to reduce the effect of these regulations. But judges are not experts in

conducting voter registration drives and the Supreme Court made it clear in

Meyer that “[t]he First Amendment protects appellees’ right not only to advocate

their cause but also to select what they believe to be the most effective means for

so doing.” 486 U.S. at 424.

In Meyer and Buckley, as in this case, the plaintiffs were advocates seeking

to collect signatures (and verify them) as part of core democratic activity. More

particularly, the activity in Meyer and Buckley was to persuade as many voters

as possible to approve a referendum initiative to be placed on the ballot. This

required circulators to collect signatures on a petition, verify the signatures, and

deliver the petition to the appropriate state official. In our case the activity is

to persuade as many citizens as possible to participate in the democratic process.

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The first step is registering voters. This requires persuading and assisting a

citizen to complete a voter application and ensure the delivery of the application

to the appropriate registrar. Once the voter is registered, the plaintiffs urge

registered voters to cast their votes in scheduled elections. The speech rights of

the plaintiffs in this case seeking to influence citizens to participate in the

democratic process are as strong or stronger than the plaintiffs’ rights in Meyer

and Buckley. The First Amendment rights of the canvassers in Meyer and

Buckley and the canvassers in this case are indistinguishable: The right to

conduct their campaign without unjustified burdens “limits the number of voices

who will convey [plaintiffs’] message.” Meyer, 486 U.S. at 422; see also Citizens

United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (holding that federal

election laws prohibiting corporations and unions from using general treasury

funds to make independent expenditures for speech defined as “electioneering

communication” or for speech expressly advocating the election or defeat of a

candidate is unconstitutional suppression of political speech).

The Supreme Court has a long line of cases holding that restrictions on

expressive conduct, other than pure speech, may implicate the First

Amendment. See, e.g., Texas v. Johnson, 491 U.S. 397, 404-06 (1989) (flag

burning); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969)

(arm bands to protest the Vietnam War); Brown v. Louisiana, 383 U.S. 131, 141-

42 (1966) (sit-ins to protest segregation). The plaintiffs’ conduct in this case is

inherently expressive of their message of increasing citizen participation in the

democratic process. Rumsfield v. Forum for Academic & Institutional Rights,

Inc., 547 U.S. 47, 66 (2006).

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Also, the majority’s effort to slice the various portions of the registration

effort into protected and unprotected activity ignores the fact that plaintiffs’

registration activity implicates not only their speech rights, it also implicates

their freedom of association. Both are equally protected by the First

Amendment. The plaintiffs’ activities do not cease when the voter registration

application is complete. The plaintiffs receive and submit the application for

processing and follow up with the registrar to ensure that the registration

application resulted in a registered voter. They also follow up with voters to

encourage them to vote. The freedom of the plaintiffs to associate with others

for the advancement of common beliefs is protected by the First and Fourteenth

Amendments. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958);

Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).

As the Secretary concedes, nearly every federal court addressing this issue

has found that the expressive conduct of actually registering voters, to the extent

separable from the speech involved in persuading voters to register, is protected

expressive conduct of those conducting the voter registration drive. See, e.g.,

Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1200

(D.N.M. 2010) (“In short, to participate in voter registration is to take a position

and express a point of view in the ongoing debate whether to engage or to

disengage from the political process. The Court concludes that the act of voter

registration is expressive conduct worthy of First-Amendment protection.”);

Project Vote v. Blackwell, 455 F. Supp. 2d 694, 702 (N.D. Ohio 2006) (“[T]he

Court is satisfied that participation in voter registration implicates a number of

both expressive and associational rights which are protected by the First

Amendment. These rights belong to – and may be invoked by – not just the

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voters seeking to register, but by third parties who encourage participation in

the political process through increasing voter registration rolls.”).

If you start from what I believe is the correct baseline – that under the

Supreme Court’s precedent, the plaintiffs’ entire voter registration activity is

protected core political speech – then “the question is not whether Plaintiffs’

conduct comes within the protections of the First Amendment, but whether

Defendants have regulated such conduct in a permissible way.” League of

Women Voters v. Cobb, 447 F. Supp. 2d 1314, 1334 (S.D. Fla. 2006). Assuming

without deciding that the district court correctly applied the Anderson-Burdick

balancing test to this question,1 I am satisfied that the district court correctly

weighed the effect of each regulation on the plaintiffs’ First Amendment rights

against the justifications raised by the state to conclude that the plaintiffs were

entitled to a preliminary injunction barring enforcement of the above listed

provisions. I consider briefly below the individual provisions of the Texas

Election Code plaintiffs challenge in this case.

A. The Non-Resident Provision

The Non-Resident Provision, one of the provisions under review in the

Texas Election Code, provides that only a Texas resident may be appointed as

a VDR. See TEX. ELEC. CODE ANN. §§ 13.031(d)(3), 11.002(a)(5). Because only

VDRs can handle or submit a registration application to the registrar, this

regulation in effect makes it a crime for a non-resident to handle or submit a

registration application. The district court accepted the plaintiffs’ testimony

1

See Anderson v. Celebrezze, 460 U.S. 780, 780-90 (1983); Burdick v. Takushi, 504

U.S. 428, 434 (1992).

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that this prevented the out-of-state campaign organizer from using its managers

effectively in troubleshooting and identifying problems and generally organizing

the campaign. Out-of-state managers cannot train, lead, demonstrate best

practices, or perform quality control without ever touching an application - the

registration drives’ central tool for engaging voters. The only state interest

raised to justify the prohibition is the assertion that Texas residents will take

better care of their fellow citizens’ registration forms than non-residents would.

The Secretary provides no authority or analysis to support this bold assertion.

I agree with the district court that any state interest identified is not strong and

the regulation is not a narrowly tailored attempt to curtail any fraud that might

be associated with out-of-state canvassers. This restrictions flies directly into

the teeth of Buckley in which the Supreme Court struck down Colorado’s

attempt to restrict petition circulators to registered voters of the state. The

restriction in this case, as in Buckley, limits the number of voices available to

convey plaintiffs’ message and, contrary to the conclusion of the majority, the

plaintiffs have clearly demonstrated a likelihood of success on the merits of their

challenge to this provision.

B. The County Provision

Texas Election Code § 13.038 provides that a VDR may distribute and

accept applications for voter registration throughout the county in which he is

qualified. As interpreted by the state of Texas, a VDR must be appointed in

every county in which an applicant resides so that a VDR who is appointed in

County A yet submits an application for a citizen who resides in County B is

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subject to criminal prosecution.2 The district court found that the plaintiffs had

demonstrated that the County Provision imposes heavy time and administrative

burdens on their organizations. These rules force the organizations to have their

canvassers and managerial staff appointed as VDRs in multiple counties. This

is especially burdensome in the larger metropolitan areas where voters may

reside in one of several area counties. As pointed out by the district court, a

VDR active in the City of Dallas would need to be appointed in five different

counties in order to accept applications in all parts of the city. Texas has 254

counties which magnifies the burden of this limitation. A VDR will not always

know in which county a potential voter resides simply by the fact that he is

present at a registration drive rally. Thus, the VDR in this situation risks

criminal sanctions for accepting a voter registration application from a resident

of a county in which the VDR has not been appointed. It is obvious how this rule

would chill the plaintiffs’ registration activities.

The Secretary provided little justification for this rule. State, not county,

laws govern voter registration, so there are no county-specific issues relevant to

VDR appointment. Although the Secretary argued that the County Provision

helps prevent fraud by making local county registrars more aware of VDR

activity in their counties, the registrars are made aware of the identity of the

VDRs when they submit voter registration applications. See TEX. ELEC. CODE

ANN. §13.040 (VDRs must provide a receipt to the registrar with submitted voter

registration applications that identifies the county of their appointment). The

2

Although plaintiffs initially understood the rules to require VDRs to also be trained

in every county in which they sought appointment, the state has interpreted the statutes to

require training in only one county.

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district court correctly found that this provision violated plaintiffs’ First

Amendment rights.

C. The Compensation Provision

This provision subjects a campaign organizer, as employer, to criminal

prosecution for compensating employees assisting in the campaign in a manner

prohibited in this section. TEX. ELEC. CODE ANN. § 13.008. The Compensation

Provision has three subparts: (1) a ban on “compensat[ing] another person based

on the number of voter registrations that the other person successfully

facilitates,” Id. § 13.008(a)(1); (2) a ban on “present[ing] another person with a

quota of voter registrations to facilitate as a condition of payment or

employment,” Id. § 13.008(a)(2); and (3) a ban on “engag[ing] in any other

practice that causes another person’s compensation from or employment status

with the person to be dependent on the number of voter registrations that the

person facilitates.” Id. § 13.008(a)(3). The plaintiffs do not challenge subpart

(1). They contend, however, that the remaining provisions severely burden their

ability to conduct registration drives by preventing them from rewarding or

sanctioning employees based on performance. They submit that the provisions

expose them to criminal sanctions if they either: (1) terminate or discipline a

canvasser who performs poorly; or (2) reward high performers by promoting

them or increasing their pay.

The Secretary interprets the provisions as only imposing criminal

sanctions on an employer who pays canvassers on a per-application basis or

conditions payment or employment solely on a preset quota. However, I agree

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with the district court that this interpretation is inconsistent with the plain

language of the statute.3

Subparts (2) and (3) prohibit an employer from conditioning employment

on the number of applications collected or basing the employee’s compensation

on applications collected. These restrictions effectively subject the plaintiffs to

criminal sanctions for engaging in many common hiring and firing decisions.

The Secretary argues that neither provision precludes general consideration of

an employee’s productivity. However, when the employee’s job is to gather voter

registration applications, the number of applications he obtains or facilitates is

clearly an important measure of his productivity – a measure the Compensation

Provision bars the plaintiffs from using as a basis for employment and

compensation decisions.

That these provisions hamper the voter registration activities of the

plaintiffs is obvious. As the Sixth Circuit explained in striking down an Ohio

compensation prohibition that banned “pay[ing] any other person for collecting

signatures on election-related petitions or for registering voters except on the

basis of time worked”:

[W]hen petitioner’s means are limited to volunteers and to paid

hourly workers who cannot be rewarded for being productive and

arguably cannot be punished for being unproductive, they carry a

significant burden in exercising their right to core political speech.

Citizens for Tax Reform v. Deters, 518 F.3d 375, 385-87 (6th Cir. 2008).

3

“[T]his Court may impose a limiting construction on a statute only if it is ‘readily

susceptible’ to such a construction.” United States v. Stevens, 130 S. Ct. 1577, 1591-1592

(2010) (quoting Reno v. ACLU, 521 U.S. 844, 884 (1997)).

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Again, the Secretary’s justification for this provision is the need to combat

voter registration fraud. The ban on paying compensation directly for each

application obtained serves this interest and the plaintiffs do not challenge that

provision. However, the remaining provisions further the state interest

minimally, if at all, and burden speech and association by banning commonly

accepted employment practices such as performance evaluations, performance-

based pay, and the requirement of performance as a condition of employment.

Violation of these provisions subject the employer to criminal prosecution and

place an undue burden on the plaintiffs’ First Amendment rights. In my

judgment, the district court correctly enjoined enforcement of subparts (2) and

(3) of this provision.

II.

Preemption by the NVRA

The district court found that the remaining two provisions–the

Photocopying Provision and the Personal Delivery Provision–were preempted by

the NVRA. The majority concedes that state election law may not “directly

conflict” with federal election laws on the subject. Voting Integrity Project, Inc.

v. Bomer, 199 F.3d 773, 775 (5th Cir. 2000). The recent Supreme Court decision

in Arizona v. Inter Tribal Council of Arizona, 133 S.Ct. 2247 (2013), held that

the state enjoys no presumption against preemption in election clause cases. Id.

at 2256-57. Instead, we are instructed to interpret “Election Clause legislation

. . . to mean what it says.” Id.

A. The Photocopying Provision

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With respect to the Photocopying Provision, plaintiffs challenge the

Secretary’s interpretation of §13.038. The Secretary argues that the Texas

Election Code prohibits VDRs from photocopying registration applications

because state law does not explicitly authorize this activity and because these

documents are considered confidential under § 13.004. The plaintiffs contend

that the NVRA’s public disclosure provision4 preempts the prohibition on

photocopying.

I agree with the district court that voter registration applications are

“records concerning the implementation of programs and activities conducted for

the purpose of ensuring the accuracy and currency of official lists of eligible

voters” under the relevant provision of the NVRA. 42 U.S.C. § 1973gg-6(I);

Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 340 (4th Cir. 2012).

VDRs are deputized to act in the place of the county registrar when they

distribute and receive voter registration applications. TEX. ELEC. CODE ANN. §

13. 031. Section 1973gg-6(I) does not require that the records be in the hands of

the state. It merely requires the state to maintain the records and make them

available for public inspection. The myriad of regulations governing VDRs are

4

The NVRA provision covering “Public disclosure of voter registration activities,”

states:

Each State shall maintain for at least 2 years and shall make available for

public inspection and, where available, photocopying at a reasonable cost, all

records concerning the implementation of programs and activities conducted for

the purpose of ensuring the accuracy and currency of official lists of eligible

voters, except to the extent that such records relate to a declination to register

to vote or to the identify of a voter registration agency through which any

particular voter is registered.

42 U.S.C. § 1973gg-6(I).

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based on the assumption that the state has the ability to protect that application

by regulating how it is handled until it is in the hands of the local registrar. In

doing so, the state (through the VDR) “maintains” the completed voter

registration applications until they are submitted to the local registrar. Thus,

a completed application in the hands of a VDR is a record that must be made

available for photocopying under the NVRA. I agree with the district court that

it would be an absurd result to forbid private parties from copying applications

they are authorized to receive on behalf of the state before they are submitted

to the state, when the NVRA requires the state to allow them to make a copy

once the record has been submitted.

The privacy concerns raised by the Secretary are also answered by the

NVRA. As stated in Long, “[i]t is not the province of this court . . . to strike the

proper balance between transparency and voter privacy . . . . Congress has

already answered the question by enacting [section 1973gg-6(I)], which plainly

requires disclosure of complete voter registration applications.” 682 F.3d at 339.

This conclusion is buttressed by the Supreme Court’s holding in Arizona that no

presumption against preemption applies in these election clause cases.

B. The Personal Delivery Provision

The Texas Election Code states that “[a] volunteer deputy registrar shall

deliver in person, or by personal delivery through another designated volunteer

deputy, to the registrar each completed voter registration application submitted

to the deputy.” TEX. ELEC. CODE ANN. § 13.042(a). This section of the election

code prohibits VDRs from using U.S. mail to deliver the applications. Any VDR

who violates this ban is subject to criminal prosecution. Id. § 13.043.

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Several provisions of the NVRA require states to allow voter registration

by mail. 42 U.S.C. § 1973gg-4(a)(1) (“Each State shall accept and use the mail

voter registration application form prescribed . . . pursuant to section 1973gg-

7(a)(2).”); 42 U.S.C. 1973gg-2(a)(2) (“[N]otwithstanding any other Federal or

state law, in addition to any other method of voter registration provided for

under State law, each State shall establish procedures to register to vote in

Elections for Federal office . . . by mail application pursuant to section 1973gg-4

. . . . ”).

I agree with the district court that the Texas Election Code provision

presents a clear and direct conflict with the NVRA. The NVRA makes no

distinction between applications submitted directly by a voter and those

submitted by a third-party. The prospect of a criminal sanction effectively

prevents the plaintiffs from using the mails to deliver applications to the

registrar.

Because of the patent conflict, I would find that the plaintiffs have shown

that they have a substantial likelihood of success on the merits on this issue and

that the district court correctly enjoined its enforcement.

III.

For the above reasons and those stated by the district court in its careful

opinion, I am convinced that the plaintiffs have demonstrated a substantial

likelihood of success on the merits of each provision of the Texas Election Code

the district court enjoined the state from enforcing. No serious argument is

advanced that plaintiffs failed to establish the remaining factors for issuance of

the preliminary injunction–irreparable injury, balancing of harms, and the

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public interest. For reasons advanced by the district court, I conclude that

plaintiffs clearly established these factors. I would AFFIRM the district court’s

preliminary injunction and therefore DISSENT from the majority’s contrary

conclusion.

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