Vote.Org v. Paxton

Case: 22-50536 Document: 00516380423 Page: 1 Date Filed: 07/02/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 2, 2022

No. 22-50536 Lyle W. Cayce

Clerk

Vote.Org,

Plaintiff—Appellee,

versus

Jacquelyn Callanen, Et al.

Defendants,

versus

Ken Paxton, In His Official Capacity as the Attorney

General of Texas; Lupe C. Torres, In His Official

Capacity as the Medina County Elections

Administrator; Terrie Pendley, In Her Official

Capacity as the Real County Tax Assessor-Collector,

Intervenor Defendants—Appellants.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:21-CV-649

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Edith H. Jones, Circuit Judge:

Case: 22-50536 Document: 00516380423 Page: 2 Date Filed: 07/02/2022

No. 22-50536

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.

2

Case: 22-50536 Document: 00516380423 Page: 3 Date Filed: 07/02/2022

No. 22-50536

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.

3

Case: 22-50536 Document: 00516380423 Page: 4 Date Filed: 07/02/2022

No. 22-50536

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

1

Several groups sued the Secretary of State, arguing that requiring a wet signature

on a voter registration application violates the Constitution and § 1971 of the Civil Rights

Act. Tex. Democratic Party v. Hughs, 860 F. App’x 874, 876 (5th Cir. 2021) (per curiam).

This court dismissed that lawsuit, concluding that the Secretary of State is an improper

defendant under Ex parte Young.

4

Case: 22-50536 Document: 00516380423 Page: 5 Date Filed: 07/02/2022

No. 22-50536

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

5

Case: 22-50536 Document: 00516380423 Page: 6 Date Filed: 07/02/2022

No. 22-50536

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 (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 does, that burden is minimal

and outweighed by the State’s interests. We address each argument in turn.

i.

First, the defendants contend that Vote.org lacks standing. Article III

specifies that the judicial power of the United States extends only to “Cases”

and “Controversies.” U.S. Const. art. III, § 2. Standing doctrine

implements the case-or-controversy requirement by insisting that the

plaintiff “prove that he has suffered a concrete and particularized [injury in

fact] that is fairly traceable to the challenged conduct, and is likely to be

6

Case: 22-50536 Document: 00516380423 Page: 7 Date Filed: 07/02/2022

No. 22-50536

redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U.S.

693, 704, 133 S. Ct. 2652, 2661 (2013) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992)). An organization suing on

its own behalf, as Vote.org is here, must satisfy the same standard. 2 NAACP

v. City of Kyle, 626 F.3d 233, 237 (5th Cir. 2010).

Even assuming that Vote.org has shown organizational injury from the

diversion of resources, the defendants argue that Vote.org lacks third-party

standing. Vote.org’s lawsuit, the defendants assert, does not seek to

vindicate its own rights, only the rights of Texans not before this court. The

defendants are, without question, correct that Vote.org invokes the rights of

Texas voters and not its own—an organization plainly lacks the right to vote.

A party must ordinarily assert only “his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests of third parties.”

Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975). The

Supreme Court crafted a prudential exception to the traditional rule against

third-party standing where “the party asserting the right has a ‘close’

relationship with the person who possesses the right” and “there is a

‘hindrance’ to the possessor’s ability to protect his own interests.” Kowalski

2

Organizations can satisfy the standing requirement under two theories,

“appropriately called ‘associational standing’ and ‘organizational standing.’” OCA-

Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017). Organizational standing

requires the organization to establish its own standing premised on a cognizable Article III

injury to the organization itself. Id. By contrast, associational standing “is derivative of the

standing of the [organization’s] members, requiring that they have standing and that the

interests the [organization] seeks to protect be germane to its purpose.” Id. Here, Vote.org

asserts only the former theory. (Because it is a non-membership organization, Vote.org

cannot contend that it has associational standing.) We are dubious whether Vote.org can

show an injury sufficient to claim organizational standing in light of, e.g., El Paso Cnty. v.

Trump, 982 F.3d 332, 344-45 (5th Cir. 2020); City of Kyle, 626 F.3d 328-29. We are also

dubious that its claims satisfy the traceability and redressability prongs of organizational

standing, but we leave these issues to the merits panel.

7

Case: 22-50536 Document: 00516380423 Page: 8 Date Filed: 07/02/2022

No. 22-50536

v. Tesmer, 543 U.S. 125, 130, 125 S. Ct. 564, 567 (2004) (citing Powers v. Ohio,

499 U.S. 400, 411, 111 S. Ct. 1364, 1370-71 (1991)). Otherwise, the Supreme

Court has “not looked favorably upon third-party standing.” Id.

Vote.org asserts that it fits within the prudential exception to the rule

against third-party standing. It posits that it has a close relationship with

some unknown subset of Texas voters that may in the future submit their

voter registration applications via fax using the Vote.org web application

because their right to submit those applications free from the burden imposed

by the wet signature requirement is inextricable from Vote.org’s platform.

Furthermore, Vote.org hypothesizes that individual voters injured by the wet

signature requirement are hindered by financial constraints and justiciability

problems in protecting their own rights. We disagree. Vote.org’s

relationship with prospective users is no closer than the hypothetical

attorney-client relationship rejected as insufficiently close to support third-

party standing in Kowalski. 543 U.S. at 130-31, 125 S. Ct. at 568 (concluding

that a “future attorney-client relationship with as yet unascertained”

criminal defendants is not only not a close relationship but “no relationship

at all”). Indeed, Vote.org’s CEO explained that the organization does not

“assist people in registering to vote,” instead it designed technology that

allows users to “register themselves to vote.” Moreover, there is little doubt

that voters injured by the wet signature requirement could protect their

rights—voters and associations representing those voters bring such lawsuits

all the time. See, e.g., Tex. Democratic Party v. Hughs, 860 F. App’x 874 (5th

Cir. 2021) (lawsuit brought by same group of attorneys challenging wet

signature requirement on behalf of associations with eligible voter members).

If Vote.org cannot prove that it meets the requirements for third-party

standing, as seems probable, then the defendants must prevail.

The defendants alternatively contend that even if Vote.org could fit

within the exception to the general prohibition on third-party standing,

8

Case: 22-50536 Document: 00516380423 Page: 9 Date Filed: 07/02/2022

No. 22-50536

§ 1983 contains no exception that allows a plaintiff to invoke a third-party’s

rights and therefore Vote.org lacks statutory standing for want of an arguable

cause of action. Statutory standing turns on “whether a legislatively

conferred cause of action encompasses a particular plaintiff’s claim.”

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127-128

n.4, 134 S. Ct. 1377, 1387, 1387 n.4 (2014). Section 1983, the defendants point

out, specifies that state actors who subject a person “to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured . . . .” 42 U.S.C. § 1983(emphasis added).

Thus, the defendants emphasize, the text seemingly precludes an action

premised on the deprivation of another’s rights. And here there is little doubt

that Vote.org’s lawsuit is derivative in that sense: The substantive claims

both hinge on allegations that the wet signature requirement unlawfully

infringes Texans’ right to vote.

Vote.org retorts that the defendants’ position is contradicted by the

weight of precedent. Less clear is what precedent. Of the cases Vote.org

cites, some involve organizations bringing § 1983 claims but, with two

exceptions, none appear to involve an organization suing only on its own

behalf based on injuries to a third parties. 3 The two cases where courts

allowed an organization to sue under § 1983 based on the infringement of

another’s rights did so without discussing the issue. See Nnebe v. Daus,

644 F.3d 147 (2d Cir. 2011); Common Cause v. Thomsen, No. 19-cv-323,

3

See, e.g., Ass’n of Am. Physicians & Surgeons v. Tex. Med. Bd., 627 F.3d 547, 553

(5th Cir. 2010) (concluding that association “was entitled to claim associational standing

on behalf of its members . . . .”); Anderson v. Ghaly, No. 15-cv-5120, 2022 WL 717842, at

*6 (N.D. Cal. Mar. 10, 2022) (holding that organizations alleged facts sufficient for both

associational and organizational standing); Tex. Democratic Party v. Hughs, 474 F.Supp.3d

849, 855-857 (W.D. Tex. 2020) (same), rev’d on other grounds 860 F.App’x 874 (5th Cir.

2021); Mercado Azteca, L.L.C. v. City of Dallas, No. 3:03-cv-1145, 2004 WL 2058791, at *6

(N.D. Tex. Sept. 14, 2004) (claim involving cognizable discrimination harm to entity).

9

Case: 22-50536 Document: 00516380423 Page: 10 Date Filed: 07/02/2022

No. 22-50536

2021 WL 5833971 (W.D. Wis. Dec. 9, 2021). The defendants’ textual

argument is powerful and Vote.org’s response weak. 4 Without an arguable

cause of action, Vote.org lacks statutory standing and the defendants appear

poised for merits success on this basis too.

ii.

Second, the defendants argue that Vote.org is unlikely to prevail on its

§ 1971 claim because (1) no voter is deprived of the opportunity to vote by

virtue of the wet signature requirement and (2) the wet signature

requirement is material to determining whether an individual is qualified to

vote. 5 Section 1971 provides:

No person acting under color of law shall . . . deny the right of

any individual to vote in any election because of an error or

omission on any record or paper related to any application,

4

What is more, this court’s precedents may preclude § 1983 actions premised on

injuries to third parties. Shaw v. Garrison, 545 F.2d 980, 983 n.4 (5th Cir. 1977) (noting

that this is “not an attempt to sue under the civil rights statutes for deprivation of another’s

constitutional rights” and that “[s]uch suits are impermissible.”), rev’d on other grounds,

436 U.S. 584, 98 S. Ct. 1991 (1978); but see Church of Scientology v. Cazares, 638 F.2d 1272,

1276-80 (5th Cir. 1981) (allowing organization to pursue § 1983 claim based on injuries to

organization’s members without substantive discussion).

5

The defendants additionally assert that § 1971 does not create an implied cause of

action or a private right enforceable in a § 1983 suit. Courts are divided on this point.

Compare Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022) (concluding that § 1971 does secure

a private right enforceable under § 1983), and Schwier v. Cox, 340 F.3d 1284, 1297 (11th Cir.

2003) (same), with McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000) (holding

otherwise). Of course, even if § 1971 provides an enforceable private right to individuals

that does not mean Vote.org may invoke that right. See Gonzaga Univ. v. Doe, 536 U.S. 273,

122 S. Ct. 2268 (2002) (noting that part of the inquiry to determine if a statute grants a

right enforceable under § 1983 is “whether or not a statute ‘confer[s] rights on a particular

class of persons.’” (emphasis added, quoting California v. Sierra Club, 451 U.S. 287, 294,

101 S. Ct. 1775, 1779 (1981))). Because we need not resolve this issue to grant the

defendants’ motion for a stay pending appeal, we leave it for the merits panel to consider

in the first instance.

10

Case: 22-50536 Document: 00516380423 Page: 11 Date Filed: 07/02/2022

No. 22-50536

registration, or other act requisite to voting, if such error or

omission in not material in determining whether such

individual is qualified under State law to vote in such election.

52 U.S.C. § 10101(a)(2)(B).

The defendants contend that enforcement of the wet signature rule

does not result in anyone being deprived of the right to vote because the

Texas Election Code confers a right to cure and allows other means of

registration. 6 Under the wet signature rule, an application submitted via fax

and mailed without a wet signature is incomplete and must be rejected. Tex.

Elec. Code § 13.073 requires the county registrar to notify any applicant

whose voter registration application is rejected, explain the reason for the

rejection, and allow the applicant ten days to cure the defect. And an

applicant has many other means of registering, by mail or personal delivery,

for instance. Texas Elec. Code § 13.002(a). Vote.org argues that the

opportunity to cure is beside the point because if the applicant who desires to

submit her application via fax does not eventually comply with a wet

signature requirement, then the voter will not be registered and,

consequently, will not be able to vote. But under Vote.org’s theory an

individual’s failure to comply with any registration requirement would

deprive that person of the right to vote. That proves too much. Voters that

submit their applications via fax and mistakenly mail a copy without a wet

6

A plausible argument can be made that § 1971 is tied to only voter registration

specifically and not to all acts that constitute casting a ballot. For example, if a voter goes

“to the polling place on the wrong day or after the polls have closed,” is that voter denied

the right to vote under § 1971? Ritter v. Migliori, 142 S. Ct. 1824, 1824 (2022) (Alito, J.,

dissenting from denial of application for stay). It cannot be that any requirement that may

prohibit an individual from voting if the individual fails to comply denies the right of that

individual to vote under § 1971. Otherwise, virtually every rule governing how citizens vote

would is suspect. “Even the most permissive voting rules must contain some

requirements, and the failure to follow those rules constitutes the forfeiture of the right to

vote, not the denial of that right.” Id.

11

Case: 22-50536 Document: 00516380423 Page: 12 Date Filed: 07/02/2022

No. 22-50536

signature are given a second bite at the apple. Indeed, the county registrar is

required to notify the applicant in short order and allow ten days to cure.

What is more, no applicant must comply with the wet signature

requirement—there are plenty of alternative means to register. Thus, it is

hard to conceive how the wet signature rule deprives anyone of the right to

vote.

Next, the defendants argue that the wet signature requirement is

material in determining whether an individual is qualified to vote. To be

qualified to vote in Texas, an individual must, among other things, be “a

registered voter.” Tex. Elec. Code § 11.002(a)(6). And to register to vote in

Texas an individual must submit a written and signed “application to the

registrar of the county in which the [individual] resides . . . by personal

delivery, by mail, or by [fax] in accordance with Sections 13.143(d) and (d-

2).” Tex. Elec Code § 13.002(a)-(b). Section 13.143(d-2), in turn, requires

that a voter registration application submitted via fax be subsequently mailed

with the applicant’s original, i.e. wet, signature. Tex. Elec. Code § 13.143(d-

2). Texas’s approved voter registration application displays the State’s

voting requirements immediately above the signature box and also that giving

false information to procure a voter registration is criminal perjury.

Requiring a wet signature on a voter registration application submitted via

fax, the defendants emphasize, therefore ensures that an applicant has read,

understood, and attested that he meets the qualifications for voting. Thus,

the defendants conclude, not only is the wet signature requirement material

in the sense that it is one of the ways an individual becomes qualified to vote

but it is also material in the sense that it deters fraud, as I explain in the next

section.

Vote.org contests the wet signature rule’s materiality by pointing out

that several election administrators admitted in depositions that the rule

serves no purpose related to determining an applicant’s qualifications to

12

Case: 22-50536 Document: 00516380423 Page: 13 Date Filed: 07/02/2022

No. 22-50536

vote. Indeed, Vote.org stresses, county registrars accept any voter

registration application with a wet signature without comparing or otherwise

inspecting the signature other than to ensure the signature is present.

Vote.org does not, however, contest the materiality of Tex. Elec. Code

§ 13.002(b)’s general requirement that an application “must be in writing

and signed by the applicant.”

It seems to us that Vote.org’s position is logically inconsistent. For

one, it is unclear how its argument squares with § 1971’s text. In Texas, an

individual is qualified to vote only if she is registered and to register via fax

she must comply with the wet signature rule. Tex. Elec.

Code §§ 11.002(a)(6), 13.002(a). Thus, to be qualified to vote she must mail

her application to the county registrar with a wet signature. Moreover, the

text of Tex. Elec. Code §§ 13.002(a) and 13.002(b) suggest that the general

requirement that an application be “signed by the applicant” is no more or

less material under § 1971 than the requirement that an application submitted

by fax be “in accordance with” the wet signature requirement. In short, the

two requirements fall or stand together under § 1971. Vote.org cannot

logically maintain that the one is valid and the other not.

Because the defendants can show that Vote.org’s § 1971 claim is

unlikely to succeed, they have also shown a strong likelihood of success on

this front.

iii.

Finally, the defendants contend that Vote.org is unlikely to succeed

on its constitutional claim under the First and Fourteenth Amendments.

“Where a state election rule directly restricts or otherwise burdens an

individual’s First [or Fourteenth] Amendment rights, courts apply a

balancing test derived from two Supreme Court decisions,” Anderson v.

Celebrezze, 460 U.S. 780, 103 S. Ct. 1564 (1983), and Burdick v. Takushi,

13

Case: 22-50536 Document: 00516380423 Page: 14 Date Filed: 07/02/2022

No. 22-50536

504 U.S. 428, 112 S. Ct. 2059 (1992). Voting for Am., Inc. v. Steen, 732 F.3d

382, 387 (5th Cir. 2013). In applying the Anderson-Burdick framework, this

court “must weigh the character and magnitude of the asserted injury” to

voting rights under the First and Fourteenth Amendments “against the

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

imposed by its rule.” Id. at 387-88 (quoting Burdick, 504 U.S. at 434,

112 S. Ct. at 2063, and Anderson, 460 U.S. at 789, 103 S. Ct. at 1570). “State

rules that impose a severe burden” on voting rights “must be ‘narrowly

drawn to advance a state interest of compelling importance.’” Id. at 388

(quoting Burdick, 504 U.S. at 434, 112 S. Ct. at 2063). By contrast, State

rules that impose lesser burdens “trigger less exacting review, and a State’s

‘important regulatory interests’ will usually be enough to justify ‘reasonable,

nondiscriminatory restrictions.’” Id. (quoting Timmons v. Twin Cities Area

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

The defendants assert that the wet signature rule imposes at most a de

minimis burden on the right to vote. Drawing an analogy to Tex. League of

United Latin Am. Citizens v. Hughs, 978 F.3d 136 (5th Cir. 2020)

(“LULAC”), the defendants posit that the wet signature requirement is part

of the Texas Legislature’s expansion of the means for voter registration. Id.

at 144 (concluding that “one strains to see how [the voting provision at issue]

burdens voting at all” because it is “part of the Governor’s expansion of

opportunities to case” a ballot). And any burden on the right to vote, the

defendants contend, is mitigated by the availability of numerous other ways

to register. Furthermore, the defendants stress that the wet signature

requirement advances Texas’s interests in (1) guaranteeing that the applicant

attests to meeting the State’s voting qualifications and (2) helping to deter

and detect voter fraud.

As it did before the district court, Vote.org contends that the

defendants err in characterizing the wet signature rule as part of an expansion

14

Case: 22-50536 Document: 00516380423 Page: 15 Date Filed: 07/02/2022

No. 22-50536

of voting rights. LULAC is distinguishable, Vote.org contends, because it

addressed a challenge to voting provisions adopted in quick succession.

Here, by contrast, Texas first offered registration via fax in 2013 but then

restricted access to that method of registration by adopting the wet signature

rule in 2021. As to the State’s interests, Vote.org asserts that the defendants

fail to offer a coherent explanation that justifies the burden the wet signature

rule places on voters. Texas’s asserted interest in guaranteeing that an

applicant attests to meeting the qualifications to vote is belied by the fact that

Texas allows residents to use imaged signatures in many other similarly

important contexts. And that Texas might compare a voter registration form

against later registration or ballots if their authenticity is in question hardly

shows why a wet signature is required. Critically, the district court found that

“[a]t no time is an original, wet signature used to conduct a voter-fraud

investigation.”

For at least two reasons the defendants are likely to succeed on this

balancing test. First, the defendants are almost certainly correct that the wet

signature rule imposes at most a very slight burden on the right to vote.

Indeed, “one strains to see how it burdens voting at all.” LULAC, 978 F.3d

at 144. The wet signature requirement does not burden the right to vote in

toto, it only affects the small subset of voter registration applicants that elect

to register via fax. And even for those applicants, the burden is small.

Second, the State’s asserted interests are surely adequate to justify the slight

burden imposed by the wet signature rule. “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.” Voting for Am., Inc., 732 F.3d at 394. Physically signing a voter

registration form and thereby attesting, under penalty of perjury, that one

satisfies the requirements to vote carries a solemn weight that merely

submitting an electronic image of one’s signature via web application does

15

Case: 22-50536 Document: 00516380423 Page: 16 Date Filed: 07/02/2022

No. 22-50536

not. Thus, it is almost unquestionable that the wet signature requirement

helps deter voter registration fraud. Moreover, actual evidence of voter

registration fraud “has never been required to justify a state’s prophylactic

measures to decrease occasions for vote fraud or to increase the uniformity

and predictability of election administration.” LULAC, 978 F.3d at 147.

Accordingly, the defendants have shown a likelihood of success on this issue.

B.

Having concluded that the defendants have shown a strong likelihood

of success on the merits, we address the remaining Nken factors; namely,

“whether the applicant will be irreparably injured absent a stay”; “whether

issuance of the say will substantially injure the other parties interested in the

proceeding”; and “where the public interest lies.” Nken, 556 U.S. at 426,

129 S. Ct. at 1756.

The defendants easily satisfy their burden to show that they will be

irreparably injured absent a stay. When a “State is seeking to stay a

preliminary injunction, it’s generally enough to say” that “‘[a]ny time a

State is enjoined by a court from effectuating statutes enacted by

representatives of its people, it suffers a form of irreparable injury.’”

Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020) (quoting Maryland v.

King, 567 U.S. 1301, 1301, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers)).

So it is here. See LULAC, 978 F.3d at 149; Tex. Democratic Party v. Abbott,

961 F.3d 389, 411 (5th Cir. 2020). Vote.org’s contrary arguments are

unavailing.

The remaining two factors also weigh in the defendants’ favor.

Issuing a stay pending appeal will not substantially injure either Vote.org or

other interested parties (i.e. voters in the four counties where the district

court’s injunction applies) because Vote.org cannot register to vote and

individuals seeking to register to vote can simply comply with the wet

16

Case: 22-50536 Document: 00516380423 Page: 17 Date Filed: 07/02/2022

No. 22-50536

signature requirement or else register in another way. Moreover, a stay

simply maintains the status quo since at least 2018, when the Texas Secretary

of State clarified that wet signatures are required for voter registration

applications submitted via fax. Finally, where “the State is the appealing

party,” as it is here, “its interest and harm merge with the public.” Veasey

v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (per curiam). A temporary stay

will, at a minimum, minimize confusion among voters and county registrars

by making voter registration law uniform throughout the state in the crucial

months leading up to the voter registration deadline. That result is plainly

within the public’s interest.

III.

The defendants’ emergency motion for stay pending appeal is

therefore GRANTED.

17