Vote.Org v. Paxton

Case: 22-50536 Document: 00517004327 Page: 1 Date Filed: 12/15/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

December 15, 2023

No. 22-50536 Lyle W. Cayce

____________ Clerk

Vote.Org,

Plaintiff—Appellee,

versus

Jacquelyn Callanen; Et al.,

Defendants,

versus

Ken Paxton, In His Official Capacity as the Attorney General of Texas;

Lupe C. Torres, In His Official Capacity as the Medina County Elections

Administrator; Terrie Pendley, In Her Official Capacity as the Real

County Tax Assessor-Collector,

Intervenor Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:21-CV-649

______________________________

Before Barksdale, Southwick, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

A non-profit organization whose stated mission is to simplify voting

brought suit against four county election officials in Texas. It alleged that a

Case: 22-50536 Document: 00517004327 Page: 2 Date Filed: 12/15/2023

No. 22-50536

Texas law requiring an original signature on a voter registration form violates

the Civil Rights Act of 1964 and the First and Fourteenth Amendments’ ban

on imposing undue burdens on the right to vote. The Texas requirement

frustrated use of the organization’s smartphone app that allows for digitized

signatures only. The Attorney General of Texas intervened and has been the

party actively defending the law. The district court granted summary

judgment in favor of the organization. We REVERSE and RENDER.

FACTUAL AND PROCEDURAL BACKGROUND

As is standard in the United States, an individual in Texas must

register to vote before casting a ballot. To register, applicants “must submit

an application to the registrar of the county in which the person resides.”

TEX. ELEC. CODE § 13.002(a). That “application must be in writing and

signed by the applicant.” § 13.002(b).

The application form is available both online and at government

offices designated as “voter registration agencies,” such as the Department

of Public Safety and public libraries. §§ 20.001, 20.031. The Secretary of

State and county registrars will also, upon request, mail applicants a postage-

paid application form.

Texans have several ways to submit their applications. They can

submit the application by personal delivery or United States mail directly to

the county registrar. § 13.002(a). Voter registration agencies are also

required to accept registration applications and deliver them to the county

registrar. §§ 20.001, 20.035. Moreover, counties may appoint “volunteer

deputy registrars” to distribute and accept applications on the county

registrar’s behalf. §§ 13.031, 13.038, 13.041. If an applicant submits an

incomplete voter registration application, then the county registrar will notify

the applicant and allow ten days to cure the deficiency. § 13.073.

2

Case: 22-50536 Document: 00517004327 Page: 3 Date Filed: 12/15/2023

No. 22-50536

Once an application form is received, the county registrar reviews it

to ensure the necessary information, including a signature, is present. Upon

confirming completeness of the form, registrars generally scan or enter the

applicants’ information in their computer system and save images of the

signatures. Some counties then destroy the original applications. The

applicants’ information is electronically transmitted to the office of the Texas

Secretary of State. The Secretary’s office processes these applications if the

essential information — such as a person’s last name, date of birth, and social

security number — is accurate.

In 2013, the Texas Legislature enacted Senate Bill 910, which allows

individuals to transmit voter registration forms by facsimile, i.e., a fax, if they

then, within four days, deliver or mail a hardcopy of the application.

§§ 13.002(a), 13.143(d-2). When applicants use this method, the effective

date of registration is the day of the fax transmissions. § 13.143(d)(2).

The plaintiff, Vote.org, developed a smartphone application, or

“app,” that it argues allows Texans to satisfy all enforceable voter

registration requirements online. In an earlier decision that granted a stay of

the district court’s injunction, this court described Vote.org as “a non-profit,

non-membership organization that seeks to simplify and streamline political

engagement by, for example, facilitating voter registration.” Vote.Org v.

Callanen, 39 F.4th 297, 301 (5th Cir. 2022). The organization works to

support low-propensity voters, including racial and ethnic minorities and

younger voters. The app prompts applicants for information and auto-fills it

onto the voter registration form. To sign the form, applicants sign a piece of

paper, take a photo of it, and upload the photo to the app. The app then

affixes the signature onto the registration form and transmits the form to two

third-party vendors: one that sends the form to the county registrar via fax

and another that mails a paper copy of the application to the county registrar.

Id. at 301.

3

Case: 22-50536 Document: 00517004327 Page: 4 Date Filed: 12/15/2023

No. 22-50536

In 2018, Vote.org began its registration efforts in Bexar, Cameron,

Dallas, and Travis counties. Id. at 301. After some technical problems were

resolved, over 2,000 Texans registered to vote using the app. In October

2018, the Texas Secretary of State issued a press release stating that “[a]ny

web site that misleadingly claims to assist voters in registering to vote online

by simply submitting a digital signature is not authorized to do so.” After

this statement, Vote.org shut off its app.

In mid-June 2021, the Texas Governor signed House Bill 3107, which

clarified that applicants using the fax option must subsequently mail a paper

application to the registrar that “contain[s] the voter’s original signature.”

§ 13.143(d-2). The parties refer to this as the “Wet Signature Rule,” and we

also will at times even though “original signature” seems clear enough. The

Secretary’s Rule 30(b)(6) designee explained in his deposition that the

impetus behind the 2021 statute was “Vote.org’s misreading of [the

signature requirement] in 2018.”

In July 2021, Vote.org sued voter registrars in four counties under 42

U.S.C. § 1983, seeking to enjoin Section 13.143(d-2)’s signature requirement.

Vote.org alleged a violation of federal rights established in the Civil Rights

Act of 1964, specifically that the right to vote shall not be denied due to

immaterial errors or omissions on any record relating to registration or other

voting requirements. 52 U.S.C. § 10101(a)(2). 1 Also alleged was that

_____________________

1

The defendants’ briefing usually cites this key statute as “Section 1971,” a former

section of Title 42; the plaintiff cites to 52 U.S.C. § 10101. The conflicting cites illustrate

that the location of statutes in the U.S. Code can change. “The responsibility for creating

and maintaining the Code has always been lodged in various locations within the House of

Representatives.” Will Tress, Lost Laws: What We Can’t Find in the United States Code,

40 GOLDEN GATE U. L. REV. 129, 143 (2010). The first official compilations were in 1873

and 1878, enacted by Congress and called the Revised Statutes. Id. at 134–35.

Controversies over those compilations may have delayed any new ones until the first

United States Code was published in 1926; beginning in 1934, there has been a new official

4

Case: 22-50536 Document: 00517004327 Page: 5 Date Filed: 12/15/2023

No. 22-50536

requiring an original signature unduly burdens the right to vote in violation

of the First and Fourteenth Amendments. In September 2021, the district

court granted motions to intervene as defendants filed by the Texas Attorney

General and the voter registrars of two additional counties.

After discovery, the defendants and Vote.org filed competing motions

for summary judgment. The district court granted Vote.org’s motion.

Vote.org v. Callanen, 609 F. Supp. 3d 515, 540 (W.D. Tex. 2022). The court

concluded that requiring an original signature violates Section 10101 of Title

52 because such a signature is not “material” to an individual’s qualifications

to vote. Id. at 527–32. The court also determined that the requirement

unduly burdens the right to vote in violation of the First and Fourteenth

Amendments. Id. at 532–39. The court permanently enjoined the defendants

from enforcing the Wet Signature Rule. Id. at 540. The original defendants

did not appeal. The only briefing from an appellant is by the Attorney

General as intervenor. Consequently, we will refer to the appellants as Texas

or the State.

_____________________

edition of the Code every six years. Id. at 135–37 & 137 n.42 (citing 1 U.S.C. § 202(c)). In

the 1934, 1940, and 1946 Codes, the then-sole section of this key statute was in the Code

title for “Aliens and Citizenship” or “Aliens and Nationality” as 8 U.S.C. § 31 (1934, 1940,

1946). What is now 42 U.S.C. § 1983 was also in that title: 8 U.S.C. § 43 (1934, 1940, 1946).

In the 1952 Code, the sections were recodified in the title for “Public Health and Welfare”

as 42 U.S.C. § 1971 and § 1983 (1952). See 1952 Code at 713–14 (explaining omissions,

repeals, and transfers of Title 8 sections to other titles).

In 1974, the Office of the Law Revision Counsel of the House of Representatives

was created and became responsible for codification. Pub. L. No. 93-554, Title I, ch. III, §

101, Dec. 27, 1974, 88 Stat. 1777, codified as 2 U.S.C. § 285–285g. “In 2014, provisions

relating to voting and elections were transferred in the United States Code from titles 2 and

42 into a new Title 52, Voting and Elections.” Office of the Law Revision Counsel, United

States Code, Editorial Reclassification, Title 52, United States Code, found at

https://uscode.house.gov/editorialreclassification/t52/index.html. Section 1971 became

52 U.S.C. § 10101. Id. (link to chart of transferred provisions). Section 1983, a broadly-

applicable civil rights statute, was not transferred. Of course, we cite the current Code.

5

Case: 22-50536 Document: 00517004327 Page: 6 Date Filed: 12/15/2023

No. 22-50536

A motions panel of this court granted a stay of the injunction pending

resolution of the appeal. Vote.org, 39 F.4th at 309. That panel held that all

the factors for a stay, including likelihood of success on the merits by the

appellants, had been satisfied. Id. at 308–09. This motions panel decision

does not bind us as a merits panel. Veasey v. Abbott, 870 F.3d 387, 392 (5th

Cir. 2017). We have, though, examined that opinion closely and respectfully.

DISCUSSION

We review the grant of summary judgment de novo. Nationwide Mut.

Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014). Summary judgment is

proper when “there is no genuine dispute as to any material fact.” FED. R.

CIV. P. 56(a). In reviewing the record, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000).

Texas argues the district court erred in its analysis of Article III

standing, of the relevant section of the Civil Rights Act of 1964, and of the

First and Fourteenth Amendments. We address these issues in that order.

I. Article III standing

The parties briefed the issues of both Vote.org’s possible

organizational standing and its third-party standing. We start with a

discussion of organizational standing.

We examine standing de novo. United States v. $500,000.00 in U.S.

Currency, 591 F.3d 402, 404 (5th Cir. 2009). Associational standing is

derivative of an organization’s members. OCA-Greater Houston v. Texas, 867

F.3d 604, 610 (5th Cir. 2017). Because Vote.org is a non-membership

organization, it can assert only organizational standing. The requirements

for organizational standing mirror those for individual plaintiffs. Association

6

Case: 22-50536 Document: 00517004327 Page: 7 Date Filed: 12/15/2023

No. 22-50536

of Cmty. Org. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999). An

organization must demonstrate that (1) it suffered an injury in fact; (2) the

injury is “fairly traceable to the challenged action of the defendant”; and (3)

it is “likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–

61 (1992) (citation omitted).

We first review whether Vote.org satisfies each of those requirements

for organizational standing in a general sense, i.e., without analyzing whether

it has standing to bring this suit under Section 1983. That analysis will

determine whether Vote.org has suffered an injury to itself that would be

redressed if the suit were successful. We then analyze third-party standing

to see if Vote.org can sue on behalf of prospective voters. Finally, we analyze

whether Vote.org can bring its claims via Section 1983.

a. Injury in fact

Organizations can satisfy injury-in-fact for standing under two

theories: associational standing and organizational standing. OCA-Greater

Houston, 867 F.3d at 610. “An organization suffers an injury in fact if a

defendant’s actions ‘perceptibly impair[]’ the organization’s activities and

consequently drain the organization’s resources.” El Paso Cnty. v. Trump,

982 F.3d 332, 343 (5th Cir. 2020) (quoting Havens Realty Corp. v. Coleman,

455 U.S. 363, 379 (1982)). A “setback to [an] organization’s abstract social

interests” is insufficient. Havens, 455 U.S. at 379. “[A]n organization may

establish injury in fact by showing that it had diverted significant resources to

counteract the defendant’s conduct.” N.A.A.C.P. v. City of Kyle, 626 F.3d

233, 238 (5th Cir. 2010).

Vote.org contends that, as a result of the Wet Signature Rule, it is no

longer able to make use of its app and “has been diverting its limited

resources to less effective (and less efficient) means of increasing turnout and

7

Case: 22-50536 Document: 00517004327 Page: 8 Date Filed: 12/15/2023

No. 22-50536

political engagement.” Vote.org’s CEO testified that the Wet Signature

Rule caused it to shut down its app and impaired the organization’s “ability

to reach voters” and “to get people . . . to participate in elections.”

Moreover, because of the shutdown and concomitant drain on resources,

Vote.org was “not [] able to do some of [the] innovative work” it pursues in

other states, such as programs at historically black colleges and universities,

other college programs, youth influencer programs, corporate organizing

activities, and advocating for election day as a holiday. Indeed, Vote.org’s

CEO testified that the Wet Signature Rule took up significant staff time and

resources across its engineering, partnership, and operations teams that

could have been spent on other efforts. Vote.org contends this is enough to

prove it has suffered an injury in fact.

Texas argues that organizational standing cannot be premised on

“routine” responses to allegedly unlawful conduct. That concept originated

in City of Kyle. There, we concluded that plaintiff home-builders associations

had not shown how their response to certain ordinances “differ from [the

home building associations’] routine lobbying activities.” Id. at 238. We did

not hold that resources spent on routine activities were necessarily irrelevant

to the existence of standing, and our ultimate holding did not rely on that

consideration. We held that plaintiffs lacked standing after faulting them for

merely “conjectur[ing] that the resources that the HBA had devoted to the

revised ordinances could have been spent on other unspecified HBA

activities.” Id. at 239.

Texas also relies on a precedent in which a community organization

sought standing to challenge federal expenditures on a border wall. El Paso

Cnty., 982 F.3d at 336–37, 344. We found that record to be unclear as to

whether the community organization’s responses to border-wall

construction “fall within the general ambit of its normal operations.” Id. at

344. The organization’s lack of standing was also based on its inability to

8

Case: 22-50536 Document: 00517004327 Page: 9 Date Filed: 12/15/2023

No. 22-50536

establish traceability and its reliance on a “single vague, conclusory assertion

that the organization had to divert resources.” Id.

The evidence here on diversion of resources is more detailed than in

either City of Kyle or El Paso County. Vote.org has presented more than

conjecture or a “conclusory assertion.” It has provided substantial evidence

that, because of the requirement for original signatures, it had to expend

additional time beyond the routine activities of multiple departments and

divert resources away from “particular projects.” El Paso Cnty., 982 F.3d at

344. That diversion “perceptibly impaired” Vote.org’s ability to pursue its

mission. Havens, 455 U.S. at 379.

b. Traceability

“An organization cannot obtain standing to sue in its own right as a

result of self-inflicted injuries, i.e., those that are not ‘fairly traceable to the

actions of the defendant.’” Association of Cmty. Orgs. for Reform Now v.

Fowler, 178 F.3d 350, 358 (5th Cir. 1999) (quoting Bennett v. Spear, 520 U.S.

154, 162 (1997)). If an organizational plaintiff is asserting an injury caused by

a need to divert its resources and actions, it must show that the change

“result[ed] from counteracting the effects of the defendant’s actions.”

Louisiana ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 305 (5th Cir. 2000).

Any diversion must be a specific response to the challenged law or action. It

is not fairly traceable to defendants if the diversion responded not only to the

defendants’ conduct but also to other forces. Texas State LULAC v. Elfant,

52 F.4th 248, 254 (5th Cir. 2022).

Vote.org’s injury includes the continuing bar to the use of its app. The

shutdown of the app was a “direct result of the challenged law.” Id. at 254.

As the Secretary’s Rule 30(b)(6) designee explained, the “particular

genesis” of the Wet Signature Rule was Vote.org’s app. Moreover, several

county registrars testified they would accept applications using Vote.org’s

9

Case: 22-50536 Document: 00517004327 Page: 10 Date Filed: 12/15/2023

No. 22-50536

app if not for the Wet Signature Rule. It is the shutdown of the app, of course,

that produced the diversion of resources described earlier.

Vote.org has met the traceability requirement. Texas does not

challenge the redressability element of standing. Regardless, that

requirement is plainly met. Relief from the requirement of original signatures

on voter registration forms would allow Vote.org to offer its application again.

We thus conclude that Vote.org has organizational standing to seek

redress for its own alleged injuries.

c. Third-party standing

Even though we hold that Vote.org has a traceable injury redressable

in litigation, its complaint asserts that the Wet Signature Rule violates the

federal statutory and constitutional rights of voters.

Certainly, Vote.org itself is not a Texas voter. A party ordinarily may

assert only “his own legal rights and interests, and cannot rest his claim to

relief on the legal rights or interests of third parties.” Warth v. Seldin, 422

U.S. 490, 499 (1975). This is a prudential rule, though, not a constitutional

one. In re Deepwater Horizon, 857 F.3d 246, 252 (5th Cir. 2017). We examine

the possibility of third-party standing to assert claims of voters.

1. Sufficiency of relationship between Vote.org and

voters

Vote.org sued under Section 1983 because of alleged violations of

voters’ rights under the Constitution and Section 10101. A necessary

premise for the following analysis is that voters themselves have a right to

bring such a suit. We will consider the validity of that premise later.

Third-party standing often turns on “categorized relationships” —

e.g., vendor-vendee, doctor-patient, employer-employee. 13A WRIGHT &

MILLER, FEDERAL PRACTICE AND PROCEDURE § 3531.9.3 (3d ed. 2022).

10

Case: 22-50536 Document: 00517004327 Page: 11 Date Filed: 12/15/2023

No. 22-50536

Such standing “has become firmly established with respect to a number of

easily categorized relationships. Vendors are routinely accorded standing to

assert the constitutional rights of customers and prospective customers.” Id.

This treatise reached that conclusion after discussing a Supreme Court

opinion invalidating a state law prohibiting beer vendors from selling to

females under the age of 18 or to males under the age of 21. Id. (discussing

Craig v. Boren, 429 U.S. 190, 195 (1976)). The initially underage plaintiffs

aged out before the Supreme Court considered the appeal, but the Court

allowed the case to proceed because the plaintiff beer vendor could

reasonably assert the claims of prospective beer purchasers, as well as its own

claims. Craig, 429 U.S. at 195. “[V]endors and those in like positions have

been uniformly permitted to resist efforts at restricting their operations by

acting as advocates for the rights of third parties who seek access to their

market or function.” WRIGHT & MILLER, FEDERAL PRACTICE § 3531.9.3

(quotation marks, citation, and alterations omitted); see also Maryland Shall

Issue, Inc. v. Hogan, 971 F.3d 199, 216 (4th Cir. 2020) (collecting cases).

We end where we began. Third-party standing is a prudential

consideration. Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S.

947, 956 (1984). Judicial self-restraint is warranted to avoid making

“unnecessary pronouncement[s] on constitutional issues” and “premature

interpretations of statues.” Id. at 955 (citation omitted). On the other hand,

where a party can ensure that “issues . . . will be concrete and sharply

presented,” prudential concerns are less salient. Id. On these facts,

Vote.org’s position as a vendor and voting rights organization is sufficient to

confer third-party standing.

To complete our multi-part examination of standing, we analyze

whether Vote.org, as a non-voter asserting violations of voting rights, has a

claim under Section 1983.

11

Case: 22-50536 Document: 00517004327 Page: 12 Date Filed: 12/15/2023

No. 22-50536

2. Third-party claims via Section 1983

Section 1983 specifies that those acting under color of state law who

subject “any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured.”

42 U.S.C. § 1983 (emphasis added). The claim here is that voters have been

deprived of their rights under the Constitution and Section 10101, and that

Vote.org itself has been injured.

Texas asserts that Section 1983’s reference to “party injured”

encompasses only the party “depriv[ed]” of its rights, not someone seeking

to vindicate another’s rights. Section 1983 plaintiffs, though, often have been

allowed to vindicate the rights of others. We offer a few examples. A

bookseller was allowed to vindicate the First Amendment rights of book

buyers under Section 1983. Virginia v. American Booksellers Ass’n, 484 U.S.

383, 392–93 (1988). In Craig, a vendor invoked Section 1983 to assert the

Fourteenth Amendment equal protection rights of its customers. 429 U.S.

at 195; see Walker v. Hall, 399 F. Supp. 1304, 1306 (W.D. Okla. 1975), rev’d

sub nom. Craig v. Boren, 429 U.S. 190 (confirming Craig was a 1983 action).

Finally, this court permitted a Section 1983 suit for a business that was

asserting the First Amendment rights of its employees and customers. Hang

On, Inc. v. City of Arlington, 65 F.3d 1248, 1251–52 (5th Cir. 1995).

Section 1983 is an appropriate vehicle for third-party claims.

II. Voting Rights Section of the 1964 Civil Rights Act and Section 1983

The parties dispute whether Section 10101 creates a private right of

action. They also dispute whether, even if a private right of action were cre-

ated, it could be enforced using Section 1983. We discuss both disputes.

12

Case: 22-50536 Document: 00517004327 Page: 13 Date Filed: 12/15/2023

No. 22-50536

a. Private right enforceable under Section 1983

The section on voting in the 1964 Civil Rights Act 2 established what

is often called the Materiality Provision. That provision prohibits denying

the right to vote because of minor errors or omissions:

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

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

omission on any record or paper relating to any application,

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

omission is not material in determining whether such

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

52 U.S.C. § 10101(a)(2)(B). Section 10101 does not explicitly grant

individuals the right to bring suit. The only explicit right to sue is the one

granted to the Attorney General. § 10101(c).

A private cause of action may still be implied when a statute (1)

contains rights-creating language and (2) displays “an intent to create a

private remedy.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002); Alexander

v. Sandoval, 532 U.S. 275, 286 (2001). If “a plaintiff demonstrates that a

statute confers an individual right, the right is presumptively enforceable by

§ 1983.” Gonzaga, 536 U.S. at 284.

1. Rights-creating language

The first requirement is met when “the provision in question is

phrased in terms of the persons benefitted” or has “an unmistakable focus

on the benefited class.” Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599

_____________________

2

The more detailed and significant contemporaneous legislation on voting was the

1965 Voting Rights Act. Pub. L. No. 89-110, 79 Stat. 437 (1965). It is not involved in this

litigation except to the extent of our relying by analogy on caselaw under that Act.

13

Case: 22-50536 Document: 00517004327 Page: 14 Date Filed: 12/15/2023

No. 22-50536

U.S. 166, 183 (2023) (quotation marks and citation omitted). There is strong

“rights-creating” language in the first section of the statute:

All citizens of the United States who are otherwise qualified by

law . . . , shall be entitled and allowed to vote at all such

elections, without distinction of race, color, or previous

condition of servitude; any constitution, law, custom, usage, or

regulation of any State or Territory, or by or under its

authority, to the contrary notwithstanding.

52 U.S.C. § 10101(a)(1). That statutory language has existed since 1870; it

was the entirety of the section until the Civil Rights Act of 1957. Act of May

31, 1870, ch. 114, § 1, 16 Stat. 140; see Historical and Statutory Notes,

Codifications, 42 U.S.C.A. § 1971 (2012), at 145 (now 52 U.S.C.§ 10101).

Several courts held there was a private right under the original section,

though they were not using the much later Gonzaga test. Indeed, “from the

enactment of § 1983 in 1871 until 1957, plaintiffs could and did enforce the

provisions of § 1971 [now, § 10101] under § 1983.” Schwier v. Cox, 340 F.3d

1284, 1295 (11th Cir. 2003) (collecting cases). One example of a suit brought

by private plaintiffs under the pre-1957 statute concerned the refusal of local

officials to allow a black man to vote. See Smith v. Allwright, 321 U.S. 649,

650–51 (1944). The plaintiff claimed that actions of local officials “violate

Sections 31 and 43 of Title 8 of the United States Code,” id., which are now

Section 10101 and Section 1983. Two other examples are from this court. In

each, we held that a private party had a right to seek relief when the original

1870 language was the entirety of the statute. See Reddix v. Lucky, 252 F.2d

930, 931, 934 (5th Cir. 1958) (alleged violations occurred in 1956, before the

1957 amendment); Chapman v. King, 154 F.2d 460 (5th Cir. 1946) (private

suit allowed).

In 1964, Congress added the Materiality Provision to what is now

Section 10101. Civil Rights Act of 1964, Pub. L. No. 88-352, § 101, 78 Stat.

14

Case: 22-50536 Document: 00517004327 Page: 15 Date Filed: 12/15/2023

No. 22-50536

241. That amendment added language that also is written in terms of rights:

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

to vote in any election because of an error or omission,” etc. 52 U.S.C.

§ 10101(a)(2)(B) (emphasis added). The new provision, subsection

(a)(2)(B), identifies a specific means of denying the rights described in

subsection (a)(1). We do not see that the focus on rights of Section 10101(a)

is distorted by the enactment of a specific prohibition.

The phrasing of the Materiality Provision is similar to language the

Court has held to confer a private right.3 See Gonzaga, 536 U.S. at 284 & n.3.

Moreover, the Materiality Provision neither has an “aggregate focus” nor

does it “speak only in terms of institutional policy and practice.” Id. at 288.

It is true that the subject of the Materiality Provision is the regulating official

— “no person acting under color of law,” 52 U.S.C. § 10101(a)(2)(B) — not

the person regulated by state law. The Supreme Court recently stated,

though, that “it would be strange to hold that a statutory provision fails to

secure rights simply because it considers, alongside the rights bearers, the

actors that might threaten those rights (and we have never so held).”

Talevski, 599 U.S. at 185. We agree with the Eleventh Circuit that, although

“[t]he subject of the sentence is the person acting under color of state

law, . . . the focus of the text is nonetheless the protection of each individual’s

right to vote.” Schwier, 340 F.3d at 1296. Further, the Materiality

_____________________

3

For example, the Federal Nursing Home Reform Act provides that “nursing

facilit[ies]” must “protect and promote” residents’ “right to be free from . . . any physical

or chemical restraints imposed for purposes of discipline or convenience and not required

to treat the resident’s medical symptoms.” 42 U.S.C. § 1396r(c)(1)(A)(ii). It also requires

“nursing facilit[ies]” to “not transfer or discharge [a] resident” unless certain enumerated

preconditions are met. § 1396(c)(2)(A). The Supreme Court recently held that these

provisions confer a private right. Talevski, 599 U.S. at 184–86.

15

Case: 22-50536 Document: 00517004327 Page: 16 Date Filed: 12/15/2023

No. 22-50536

Provision’s language is decidedly more rights-focused than language the

Court has held not to confer a private right. 4

We conclude that Sections 10101(a)(1) and 10101(a)(2)(B) both confer

an individual right.

2. Congressional intent to create a private remedy

“Once a plaintiff demonstrates that a statute confers an individual

right, the right is presumptively enforceable by § 1983.” Gonzaga, 536 U.S.

at 284. Nonetheless, even when “a statutory provision unambiguously

secures rights, a defendant ‘may defeat t[he] presumption by demonstrating

that Congress did not intend’ that § 1983 be available to enforce those

rights.” Talevski, 599 U.S. at 186 (quoting Rancho Palos Verdes v. Abrams,

544 U.S. 113, 120 (2005) (alterations omitted)). Different phrasing appears

in Gonzaga: rebutting the presumption requires “showing that Congress

specifically foreclosed a remedy under § 1983.” Gonzaga, 536 U.S. at 284

n.4 (quotation marks and citation omitted).

In looking for rebuttal evidence, we explore a little more statutory

history. In 1957, Congress amended the Civil Rights Act, granting

enforcement power to the Attorney General of the United States. Civil

Rights Act of 1957, Pub. L. No. 85-315, § 131, 71 Stat. 634, 637 (1957). The

_____________________

4

The Supreme Court held there was no private right in the Family Educations

Rights and Privacy Act, which provides: “No funds shall be made available under any

applicable program to any educational agency or institution which has a policy or practice

of permitting the release of education records . . . of students without the written consent

of their parents to any individual, agency, or organization.” Gonzaga, 536 U.S. at 279

(quoting 20 U.S.C. § 1232g(b)(1)).

The Supreme Court also held Section 602 of the Civil Rights Act contained no

rights-creating language because the statute “focuses neither on the individuals protected

nor even on the funding recipients being regulated, but on the agencies that will do the

regulating.” Sandoval, 532 U.S. at 289.

16

Case: 22-50536 Document: 00517004327 Page: 17 Date Filed: 12/15/2023

No. 22-50536

amendment’s text does not mention private actions. The argument is that

by explicitly granting authority to the Attorney General to enforce the Act,

private rights were implicitly withdrawn. We will examine the validity of that

argument after explaining a few more details.

The 1957 amendment also added what is now 52 U.S.C. § 10101(d),

which provides that all actions brought “pursuant to this section” can be

exercised “without regard to whether the party aggrieved shall have

exhausted administrative or other remedies that may be provided by law.”

Civil Rights Act of 1957, Pub. L. No. 85-315, § 131(d), 71 Stat. 637. Critically

in our analysis of whether granting enforcement authority had the effect of

cancelling the private remedy, the “party aggrieved” reference is unlikely to

refer to the Attorney General. The House Report on the 1957 Act cites and

discusses court opinions in which exhaustion of remedies had been required

for private plaintiffs. H.R. Rep. No. 85-291 (1957), 10–11, reprinted in 11984

U.S. CONG. SERIAL SET (1957). The Eleventh Circuit found it to be illogical

for Congress to have eliminated exhaustion requirements for private

plaintiffs unless there were a corresponding private right. Schwier, 340 F.3d

at 1296. We interpret these 1957 amendments as augmenting the implied but

established private right to sue with an explicit right in the Attorney General.

We find no explicit foreclosure of a remedy under Section 1983. To

avoid recognition of a private right, the “defendant must show that Congress

issued the same command implicitly, by creating ‘a comprehensive

enforcement scheme that is incompatible with individual enforcement under

§ 1983.’” Talevski, 599 U.S. at 186 (quoting Rancho Palos Verdes, 544 U.S. at

120)). Thus, we examine the enforcement scheme.

Several subsections of the statute detail the Attorney General’s

authority. 52 U.S.C. § 10101(c)–(e). These elaborate statutory explanations

of how enforcement by the Attorney General is to proceed certainly seem to

17

Case: 22-50536 Document: 00517004327 Page: 18 Date Filed: 12/15/2023

No. 22-50536

us to qualify as a “comprehensive scheme.” Regardless of how

comprehensive it is, though, use of Section 1983 is foreclosed only when the

scheme is “incompatible” or “inconsistent” with Section 1983 enforcement.

Talevski, 599 U.S. at 187. Of course, the first part of what is now Section

10101 was routinely enforced through Section 1983. See Schwier, 340 F.3d at

1295. That means there is a long history of compatibility between at least parts

of Section 10101 and Section 1983 that predates the addition of the Attorney

General enforcement in 1957. The details of the Attorney General’s

enforcement scheme create no conflicts with private suits under Section

1983.

Besides an incompatible enforcement regime, the Court has also

explained that “the existence of a more restrictive private remedy for

statutory violations” than what Section 1983 allows creates “the dividing line

between those cases in which we have held that an action would lie under

§1983 and those in which we have held that it would not.” Rancho Palos

Verdes, 544 U.S. at 121 (emphasis added). Section 10101 lacks any specific

“private judicial right of action” or “private federal administrative remedy”

that requires plaintiffs to comply with particular procedures. Talevski, 599

U.S. at 190. Thus, this exception to using Section 1983 is inapplicable.

With our review of the Supreme Court’s relevant guidance behind us,

we examine what other circuits have determined. Two circuits have held that

the Materiality Provision creates a private right enforceable under Section

1983. See Migliori v. Cohen, 36 F.4th 153, 159 (3d Cir. 2022), cert. granted,

judgment vacated sub nom. Ritter v. Migliori, 143 S. Ct. 297 (2022); Schwier,

340 F.3d at 1297. A third held that the Materiality Provision “is enforceable

by the Attorney General, not private citizens.” McKay v. Thompson, 226 F.3d

752, 756 (6th Cir. 2000). We find no other circuit court to have addressed

the issue. We will discuss all three opinions.

18

Case: 22-50536 Document: 00517004327 Page: 19 Date Filed: 12/15/2023

No. 22-50536

We have discussed Schwier to some extent already. 5 The components

of the Eleventh Circuit’s analysis included reliance on the caselaw allowing

private suits under the pre-1957 version of this statute. Schwier, 340 F.3d at

1295. The court held that exhaustion of remedies would be irrelevant to

Attorney General enforcement of the statute, yet the same amendment that

added Attorney General enforcement to a statute that had for decades been

used by private plaintiffs also made clear exhaustion was not required;

exhaustion is irrelevant except as to private suits. Id. at 1296. That analysis

is sound.

Undermined by later caselaw is the Schnier’s reliance on Allen v. State

Board of Elections, 393 U.S. 544 (1969). Id. at 1294–95. Allen involved

whether there was a private cause of action under Section 5 of the 1965 Voting

Rights Act. Allen, 393 U.S. at 548. That section limited the right of States to

change voting prerequisites. Id. The Court in Allen “reasoned that the goals

of the statute were much more likely to be reached if private citizens were not

‘required to depend solely on litigation instituted at the discretion of the

Attorney General.’” Schwier, 340 F.3d at 1294–95 (quoting Allen, 393 U.S.

at 556).

Almost five decades after Allen and one decade after Schwier, the

Supreme Court declared that Allen and precedents like it too readily implied

a cause of action in statutes and had largely lost their force because “the

Court adopted a far more cautious course.” Ziglar v. Abassi, 582 U.S. 120,

_____________________

5

In its first opinion, the Eleventh Circuit provided extensive analysis for its

conclusion that there was a private right, then remanded to the district court for further

proceedings because the district court had gone no further than holding there was no

private right. Schwier, 340 F.3d at 1297. When the case returned to the circuit court, it said

it would “affirm the district court’s judgment for the reasons stated in the district court’s

memorandum opinion.” Schwier v. Cox, 439 F.3d 1285, 1286 (11th Cir. 2006) (citing

Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005)).

19

Case: 22-50536 Document: 00517004327 Page: 20 Date Filed: 12/15/2023

No. 22-50536

132 (2017). Instead, the key was whether there was congressional intent to

create a private right. Id. at 133 (citing Sandoval, 532 U.S. at 286).

Regardless of the reliance on Allen, the Schwier court properly applied

Sandoval and Gonzaga and identified the rights-creating language in what are

now Sections 10101(a)(1) and (a)(2)(B). Schwier, 340 F.3d at 1296. The

rights created “are specific and not amorphous,” i.e., they protect the right

to vote when some immaterial information is not provided. Id. at 1296–97.

The language of the Materiality Provision is also mandatory: “No person

acting under color of law shall . . . deny the right of any individual to vote.”

Id. (quoting what is now Section 10101(a)(2)(B)). Those points, plus the

reference to not needing to exhaust administrative remedies in the same

amendment that added Attorney General enforcement powers, make a

strong case for finding congressional intent to allow a private remedy.

The Third Circuit also held that the Materiality Provision created a

private right presumably enforceable under Section 1983. See Migliori, 36

F.4th at 159. 6 “To rebut the presumption, a defendant must point to either

specific evidence from the statute itself or a comprehensive enforcement

scheme that is incompatible with individual enforcement under § 1983.” Id.

at 160 (quotation marks and citation omitted). The court found no evidence

in the text of the statute to rebut the presumption nor a “comprehensive

enforcement scheme that is incompatible with individual enforcement under

§ 1983.” Id. We agree with those conclusions.

The Sixth Circuit was the first circuit court to analyze whether there

was a private right under the Materiality Provision, and it held there was not.

See McKay, 226 F.3d at 756. This is the entirety of that court’s analysis:

_____________________

6

The Supreme Court vacated Migliori and remanded to the Third Circuit with

instructions to dismiss the case as moot. Migliori, 143 S. Ct. at 297–98.

20

Case: 22-50536 Document: 00517004327 Page: 21 Date Filed: 12/15/2023

No. 22-50536

The district court correctly dismissed this claim for lack of

standing. Section 1971 is enforceable by the Attorney General,

not by private citizens. See 42 U.S.C. § 1971(c); Willing v. Lake

Orion Community Sch. Bd. of Trustees, 924 F. Supp. 815, 820

(E.D. Mich. 1996).

Id.

Obviously, the Sixth Circuit considered the silence in the statutory

language and the analysis of the cited district court to be sufficient. The cited

district court opinion said little more than the Sixth Circuit did: “Section

1971 is intended to prevent racial discrimination at the polls and is

enforceable by the Attorney General, not by private citizens.” Willing, 924

F. Supp. at 820. In addition to the statutory language, the Willing court cited

Good v. Roy, 459 F. Supp. 403, 405 (D. Kan. 1978). Id. That case was not

even about the Materiality Provision, but it did refer to the statutory language

that Section 1971 was to be enforced by the Attorney General. Good, 459 F.

Supp. at 405. Neither the Sixth Circuit nor these two district courts wrestled

with the considerations for implying a private right. Moreover, McKay

predates the 2001 Sandoval opinion and the 2002 Gonzaga opinion.

We conclude that private enforcement via Section 1983 does not

thwart Congress’s enforcement scheme. Vote.org can seek a remedy for

Section 10101 violations by way of Section 1983.

Finally — does Vote.org’s claim have merit?

III. Merits of the Materiality Provision claim

Though we earlier quoted the Materiality Provision, we quote again

for ready reference:

No person acting under color of law shall . . .

deny the right of any individual to vote in any election

because of an error or omission on any record or paper

21

Case: 22-50536 Document: 00517004327 Page: 22 Date Filed: 12/15/2023

No. 22-50536

relating to any application, registration, or other act

requisite to voting, if such error or omission is not

material in determining whether such individual is

qualified under State law to vote in such election.

52 U.S.C. § 10101(a)(2)(B).

We need to interpret that provision. Statutory definitions often get us

started. We have no such assistance, though, as the core term of “material”

is not defined. The most-used legal dictionary gives this definition: “Of such

a nature that knowledge of the item would affect a person’s decision-making:

significant; essential.” Material, BLACK’S LAW DICTIONARY (8th ed. 2004).

A more comprehensive dictionary has this definition: “Of serious or

substantial import; significant, important, of consequence.” Material,

OXFORD ENGLISH DICTIONARY, III.6.a. (July 2023). We reject “essential”

as a reasonable meaning, but the rest of the variations seem about right.

There is not much caselaw applying this provision. To some degree,

then, we must set our own course. Should a district court, with some level of

deferential review on appeal, decide as a de novo factual, legal, or mixed legal-

factual question, whether a particular statutory provision is material in

determining if a person is qualified to vote? Or, is some weight given to

legislative judgment, which is not controlling perhaps but at least meaningful

to some degree?

There is a constitutional challenge as well, for which considerable

Supreme Court guidance exists. We will get to that.

The Section 10101(a)(2)(B) claim in this suit challenges a legislative

judgment on the appropriate procedures for registering voters. A vendor

wishing to facilitate voter registration contests a statutory requirement for an

applicant’s signature that the vendor’s smartphone application cannot

satisfy. Usually, a legislature would not need to revise statutes to allow a

22

Case: 22-50536 Document: 00517004327 Page: 23 Date Filed: 12/15/2023

No. 22-50536

private party to operate its business. Build a better app, the State might insist.

Still, the Materiality Provision mandates that an error or omission in a

requisite for voting be material before the requirement can be enforced.

Here, if an application received by a registrar is to be rejected, even when the

reasons for the error or omission are limitations in Vote.org’s app, we accept

(in the absence of any contrary argument) that materiality must be shown.

We will proceed in the following order. First, we consider the limited

caselaw from other circuit courts. Second, we analyze whether some weight

should be given to Texas’s legislative judgment as to the utility of the

contested provision. Third, we explore in some depth a factor that the

Supreme Court has identified as relevant in voting rights claims. Finally, we

pull those strands together as we determine the merits of the claim here.

a. Other circuits’ interpretations

We again review the few circuit court opinions that analyze the

Materiality Provision. We already discussed those opinions insofar as they

addressed whether the statutory language created a private right enforceable

through Section 1983. We return to the two opinions that found a private

right and review their analysis of materiality.

The Eleventh Circuit’s 2006 opinion considered whether it was

permissible for Georgia to require registrants to provide a Social Security

number. Schwier, 439 F.3d at 1286. The circuit court affirmed for the reasons

the district court had stated in its opinion. Id. We therefore review the

district court’s analysis.

One issue, not present in our dispute, was the effect of the Privacy

Act, 5 U.S.C. § 552a, on requiring Social Security numbers. Schwier v. Cox,

412 F. Supp. 2d 1266, 1276 (N.D. Ga. 2005), aff’d, 439 F.3d 1285 (11th Cir.

2006). The district court found that requiring this unique number could help

“prevent voter fraud,” but concluded that the Privacy Act nevertheless

23

Case: 22-50536 Document: 00517004327 Page: 24 Date Filed: 12/15/2023

No. 22-50536

proscribed its necessity. Id. As to our issue of materiality, the court held that

having a Social Security number was not one of the qualifications for a voter

under Georgia law, and that meant requiring its disclosures to vote could not

be material when determining whether an applicant was qualified. Id.

We do not find Schwier directly applicable. Georgia was insisting on a

manner of voter identification that added to the statutory qualifications for

voting, namely, that a voter have a Social Security number.

Much more recently, the Third Circuit in 2022 evaluated whether a

Pennsylvania law requiring a voter to write a “date on the outside of a mail-

in ballot . . . is material to the voter’s qualifications and eligibility to vote.”

Migliori, 36 F.4th at 156. 7 As with any out-of-circuit precedent, we consider

the opinion’s persuasiveness. We do that here even though the Supreme

Court vacated the opinion. Migliori, 143 S. Ct. at 298. For mail-in voting in

Pennsylvania, a prospective voter was sent a ballot and a return envelope; a

declaration was printed on the envelope that was to be signed and dated. Id.

at 157. The envelopes containing the contested ballots were not dated. Id.

The court began its analysis by looking to Pennsylvania’s substantive voting

requirements, including age and residency. Id. at 162–63. The State argued,

in part, that dating the envelope helped to deter fraud. Id. at 163. The court

_____________________

7

We earlier explained that a majority of the Supreme Court vacated Migliori

because it held that the case was moot. See supra note 6. One explanation for mootness is

that after the Third Circuit ordered that the disputed ballots be counted, “the election was

certified. Then, essentially because plaintiffs had won, the Supreme Court vacated the

Third Circuit’s decision.” David Herman, Reviving the Prophylactic VRA: Section 3,

Purcell, and the New Vote Denial, 132 YALE L.J. 1462, 1478 n.91 (2023).

Justice Alito, writing for three dissenting justices, concluded the Third Circuit’s

application of the Materiality Provision was “very likely wrong.” Ritter v. Migliori, 142 S.

Ct. 1824, 1824 (2022) (Alito, J., dissenting). We find Justice Alito’s analysis largely

dependent on difficulties of applying the Materiality Provision to vote counting. That

possibly overbroad application of the Materiality Provision is not involved here.

24

Case: 22-50536 Document: 00517004327 Page: 25 Date Filed: 12/15/2023

No. 22-50536

explained that “[f]raud deterrence and prevention are at best tangentially

related to determining whether someone is qualified to vote.” Id. Moreover,

“whatever sort of fraud deterrence or prevention this requirement may

serve, it in no way helps the [State] determine whether a voter’s age,

residence, citizenship, or felony status qualifies them to vote.” Id. The court

ultimately concluded that the date requirement violated the Materiality

Provision. Id. at 164.

Of course, the only issue was whether a date on an envelope in which

a ballot was returned to the proper officials was material to the qualifications

to vote. None of the votes in dispute arrived after the election, id. at 157, so

the date was not needed as evidence that the votes were timely cast.

A signature was also required on the envelope, and that requirement

was uncontested. The signature was to be next to a declaration on the

envelope, which included “a statement of the elector’s qualifications,

together with a statement that the elector has not already voted in the primary

or election.” 25 Pa. Stat. § 3150.14(b). An original versus an alternative form

of signature was also not in question.

The immateriality of the omissions in those two decisions was fairly

obvious. Overall, nothing in Schwier and Migliori causes us to question a

State’s requiring a signature in some form on documents relating to voting.

Indeed, the Texas requirement of a signature is not challenged in this case.

Only its form is contested — original versus an alternative that would allow

Vote.org to provide its services.

b. Weight of legislative judgments in general

For a successful claim of immateriality, the statutory text requires that

the “error or omission” — here, the absence of an original signature on a

voter application — not be material in determining qualifications to vote.

Some requirements for a voter application could easily be dismissed as

25

Case: 22-50536 Document: 00517004327 Page: 26 Date Filed: 12/15/2023

No. 22-50536

immaterial, while others could as easily be upheld as material. The

requirement of an original signature is not in either category.

Among the questions for us to answer is the weight that should be

given to the State’s legislative judgment. This is not a constitutional claim

necessitating the application of a balancing test that we will analyze later in

addressing a First Amendment claim. We do draw from that caselaw,

though, that States have considerable discretion in establishing rules for their

own elections. The Supreme Court recognizes a “general rule that

evenhanded restrictions that protect the integrity and reliability of the

electoral process itself are not invidious” and may be upheld at least against

a constitutional attack. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

189–90 (2008) (quotation marks and citation omitted). Crawford was a facial

challenge to an Indiana statute requiring a prospective voter to present at the

polls one of a wide range of photo identifications. Id. at 185. The plaintiffs

alleged the measure was a “violation of the Fourteenth Amendment; that it

is neither a necessary nor appropriate method of avoiding election fraud.”

Id. at 187. The Court conceded that the requirement had sharply divided the

Indiana legislature on a partisan basis, and whether this was “the most

effective method of preventing election fraud may well be debatable.” Id. at

196. What was not debatable was “the legitimacy or importance of the

State’s interest in counting only the votes of eligible voters.” Id. The Court

upheld the state measure without deciding what the most effective means to

prevent fraud would be.

Crawford is only the latest example in which the Court acknowledged

the significance of a State’s authority to set its electoral rules and the

considerable deference to be given to election procedures so long as they do

not constitute invidious discrimination. The Court has explained that

“substantial regulation of elections” is necessary incident to a “fair and

honest . . . democratic process[].” Anderson v. Celebrezze, 460 U.S. 780, 788

26

Case: 22-50536 Document: 00517004327 Page: 27 Date Filed: 12/15/2023

No. 22-50536

(1983) (citation omitted). Consequently, “the state’s important regulatory

interests are generally sufficient to justify reasonable, nondiscriminatory

restrictions.” Id. The Court has emphasized that when election regulations

“impose[] only reasonable, nondiscriminatory restrictions,” “the State’s

important regulatory interests” will usually “justify [those] restrictions.”

Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quotation marks and citation

omitted). Indeed, a “State indisputably has a compelling interest in

preserving the integrity of its election process.” Purcell v. Gonzalez, 549 U.S.

1, 4 (2006) (citation omitted).

We have had our own cases that, like Crawford, analyze a photo

identification requirement for voters. See, e.g., Veasey v. Abbott, 830 F.3d 216

(5th Cir. 2016) (en banc). Veasey involved claims brought both under the

Constitution and under the following Voting Rights Act provision that

invalidate rules denying or abridging the right to vote based on race:

No voting qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any State

or political subdivision in a manner which results in a denial or

abridgement of the right of any citizen of the United States to

vote on account of race or color, or in contravention of the

guarantees set forth in section 10303(f)(2) of this title, as

provided in subsection (b).

52 U.S.C. § 10301(a). The Veasey court found little guidance on how to

analyze a claim that “the right to vote has been denied or abridged on account

of race.” 830 F.3d at 244 (emphasis in original). We examined the Supreme

Court’s factors that were first “enunciated by Congress to determine

whether [a discriminatory] impact is a product of current or historical

conditions of discrimination such that it violates Section 2.” Id. (citing

Thornburg v. Gingles, 478 U.S. 30, 44–45 (1986)). The Supreme Court quite

recently reaffirmed the central role of the Gingles factors in disputes under

27

Case: 22-50536 Document: 00517004327 Page: 28 Date Filed: 12/15/2023

No. 22-50536

Section 2 of the Voting Rights Act. See Allen v. Milligan, 599 U.S. 1, 17–19

(2023).

In considering this appeal, we also, like our court in Veasey, have found

little guidance on analyzing the materiality of a requirement for registering to

vote. Failing to register will deny a right to vote. The 1964 Materiality

Provision for registration to vote only slightly predates the 1965 Voting

Rights Act and can be considered a precursor in many respects. That makes

the Supreme Court’s guidance on applying the Voting Rights Act of

relevance to the earlier, quite narrow provision on voting.

As we structure our own approach, we explain why the Materiality

Provision — even though it was in the first section of the 1964 Civil Rights

Act 8 — is not limited to claims that immaterial requirements for voter

registration discriminate on the basis of race. The House Report on the Act

stated that the provision was a response to practices in many states that

treated blacks seeking to register to vote differently than whites. Civil Rights

Act of 1963, H.R. Rep. No. 88-914 (Nov. 20, 1963), Part 2, at 5, reprinted in

12544 U.S. CONG. SERIAL SET (1963). All three provisions that are now

Sections 10101(a)(2)(A)–(C) were adopted to attack the problem.

Subsection (A) requires any practice applied to one individual to be applied

to all. Subsection (C) prohibits literacy tests, which were applied to

discriminate against Blacks. Together with the Materiality Provision of

subsection (B), these three provisions were a formidable barrier to a

continuation of discriminatory practices. Surely, Congress anticipated in

1964 that usually the claim would be of racial discrimination. Thus, in

deciding the proper considerations for a claim under the Materiality

_____________________

8

The Materiality Provision was one of three subsections, all dealing with voting,

comprising the first section of the Civil Rights Act of 1964, Pub. L. No. 88-352, § 101, 78

Stat. 241.

28

Case: 22-50536 Document: 00517004327 Page: 29 Date Filed: 12/15/2023

No. 22-50536

Provision, the existence of racial discrimination generally will be relevant

though, in light of the text of the provision, not essential. The provision was

written in a somewhat over-inclusive form to capture well-disguised

discrimination. We later discuss Texas’s argument that, by not requiring

proof of racial discrimination, the provision is unconstitutional.

Now, back to Veasey. The two factors we selected there from Gingles

were the ones uniquely relevant to examining claims of vote denial. Veasey,

830 F.3d at 244. We distinguished vote denial claims from those of vote

dilution, the latter often seen in legislative redistricting cases where the

Gingles factors are applied in full. Id. If the claim is that the right to vote has

been denied or abridged on account of race, these factors are relevant:

[1] [T]he challenged standard, practice, or procedure must

impose a discriminatory burden on members of a protected

class, meaning that members of the protected class have less

opportunity than other members of the electorate to participate

in the political process and to elect representatives of their

choice, [and]

[2] [T]hat burden must in part be caused by or linked to social

and historical conditions that have or currently produce

discrimination against members of the protected class.

Id. (alterations in original) (quoting League of Women Voters of N.C. v. North

Carolina, 769 F.3d 224, 240 (4th Cir. 2014)).

Those two factors, though not focused on the significance of a voting

requirement, could also be relevant to a Materiality Provision claim when

racial discriminatory effects are alleged. Vote.org’s brief argued that the

challenge of providing an original signature is “particularly acute for young

adults, low-income voters, and minorities.” We find insufficient evidence or

argument, though, to conclude that Vote.org has claimed racial

discrimination. Indeed, the State argues that Vote.org’s claims fail because

29

Case: 22-50536 Document: 00517004327 Page: 30 Date Filed: 12/15/2023

No. 22-50536

they are not about racial discrimination. We explain later that the Materiality

Provision does not require proof of racial discrimination. We similarly reject

that Vote.org’s claims are for racial discrimination. Perhaps, though, Gingles

has useful guidance for a claim that a particular “application, registration, or

other act requisite to voting” is material. 52 U.S.C. § 10101(a)(2)(B).

Of the other seven Gingles factors, we find one that is directly

applicable in analyzing a State’s justifications for the materiality of a practice:

“whether the policy underlying the state or political subdivision’s use of such

voting qualification, prerequisite to voting, or standard, practice or procedure

is tenuous.” Veasey, 830 F.3d at 246 (quoting Gingles, 478 U.S. at 37).

“Tenuous” suggests an absence of a strong connection between the policy

and the requirement. See id. at 262. Thus, if the policy or justification for

the requirement is merely tenuous, that is a factor in favor of invalidating the

requirement. On the other hand, how does a connection that is more than

tenuous affect our analysis? We explore tenuousness next.

c. Tenuousness

To understand the factor of tenuous connections, we examine one of

our opinions from two decades before Veasey. The discussion was in a case

about Texas’s long-time practice of electing judges county-wide. See League

of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993). All

voters in a populous county would elect numerous judges to serve on the

same local court with county-wide jurisdiction, but the plaintiffs sought to

have elections from smaller, single-judge districts. Id. at 837–38. The

Supreme Court had reversed and remanded our earlier decision that the

Voting Rights Act did not even apply to judicial elections. See Houston

Lawyers’ Ass’n v. Att’y Gen., 501 U.S. 419, 423–24, 428 (1991). Though the

Act applied, the Supreme Court acknowledged that Texas had a legitimate

interest in linking a judge’s jurisdiction to the same geographical area as the

30

Case: 22-50536 Document: 00517004327 Page: 31 Date Filed: 12/15/2023

No. 22-50536

one in which the judge’s voters resided. Id. at 426. Moreover, the “State’s

justification for its electoral system is a proper factor for the courts to assess

in a racial vote dilution inquiry, and the Fifth Circuit has expressly approved

the use of this particular factor in the balance of considerations.” Id. at 426–

27 (citing Zimmer v. McKeithen, 485 F.2d 1297, 1305 (1973), aff’d sub nom.

East Carroll Par. Sch. Bd. v. Marshall, 424 U.S. 636 (1976)).

This cite to Zimmer is significant, for that is a source for the Gingles

Court’s adoption of factors to consider in vote-dilution cases. Gingles, 478

U.S. at 36 n.4. The “particular factor” cited with approval by the Houston

Lawyers’ Court was whether the State’s policy behind a requirement was

tenuous. Houston Lawyers’, 501 U.S. at 426–27. The Court remanded to us

for further proceedings, making clear that the State’s justifications for

maintaining a particular electoral scheme was only one factor to consider. Id.

On remand, we discussed the consideration of the tenuousness of a

State’s justifications in some detail. We concluded that, “while the Supreme

Court rejected the contention that the linkage interest in all cases defeated

liability under § 2,[9] the Court endorsed the position that the linkage interest

is relevant to a determination of liability.” League of United Latin Am.

Citizens, 999 F.2d at 870. By “linkage interest,” we were referring to the

State’s interest in linking a judge’s jurisdiction to the same area as the judge’s

electoral base. Id. at 869. We identified the issue for determination as

deciding “when the linkage interest will outweigh other factors and defeat

liability under § 2.” Id. at 870. Some of our analysis was specifically about

the State’s interest in that linkage, which our court saw as far more than

_____________________

9

Section 2 of the Voting Rights Act is codified as 52 U.S.C. § 10301. It prohibits

imposition of a “voting qualification or prerequisite to voting” that “results in a denial or

abridgement of the right . . . to vote on account of race or color.” § 10301(a). “A violation

of subsection (a) is established” under a “totality of the circumstances” test. § 10301(b).

31

Case: 22-50536 Document: 00517004327 Page: 32 Date Filed: 12/15/2023

No. 22-50536

tenuous. The policy has “additional and distinct relevance because it

advances objectively substantive goals.” Id. Useful, more general analysis

was also given.

Our resolution of the issue included quoting the Supreme Court “that

the linkage interest does not ‘automatically, and in every case, outweigh

proof of racial vote dilution.’” Id. (quoting Houston Lawyers’, 501 U.S. at

427). “We also reject[ed] the position of plaintiffs that the linkage interest

can never defeat liability under the totality of circumstances if ‘illegal’

dilution is otherwise established.” Id. More generally, “[t]he weight, as well

as tenuousness, of the state’s interest is a legitimate factor in analyzing the

totality of circumstances.” Id. at 871. Our reference to “totality” borrowed

from Section 2 of the Voting Rights Act and the Supreme Court’s holding

that the State’s interest in a voting measure “is a legitimate factor to be

considered by courts among the ‘totality of circumstances’ in determining

whether a § 2 violation has occurred.” Houston Lawyers’, 501 U.S. at 426;

52 U.S.C. § 10301(b). We also stated that “[t]he substantiality of the state’s

interest has long been the centerpiece of the inquiry into the interpretation of

the Civil War Amendments and their interplay with the civil rights statutes.”

League of United Latin Am. Citizens, 999 F.2d at 871. As to the policy in that

case, we held that the State’s interest in linking judges’ electoral districts to

the geographical areas over which they had jurisdiction was substantial and

overrode the evidence of some vote dilution. Id. at 876.

The principles stated by our court that are relevant here were these:

(1) “[T]he principal probative weight of a tenuous state policy is its

propensity to show pretext.” Id. at 870 (quoting Terrazas v. Clements, 581 F.

Supp. 1319, 1345 n. 24 (N.D. Tex. 1983) (three-judge court)).

(2) “Proof of a merely non-tenuous state interest discounts one

Zimmer factor, but cannot defeat liability.” Id. at 871.

32

Case: 22-50536 Document: 00517004327 Page: 33 Date Filed: 12/15/2023

No. 22-50536

(3) “[P]roof of a substantial state interest” may defeat liability even if

some vote dilution results. Id.

(4) “The issue of substantiality” of the State’s interest “is a legal

determination.” Id.

These opinions regarding election of judges were applying Section 2

of the Voting Rights Act. That provision prohibits “denial or abridgement

of the right . . . to vote on account of race or color.” 52 U.S.C. § 10301(a).

The Materiality Provision similarly prohibits denial of the right to vote due

to an immaterial error or omission in some “act requisite to voting.”

§ 10101(a)(2)(B). Because the State’s justification for its practice is relevant

even in a claim that a voting requirement has racially discriminatory effects

and some weight is given to the State’s judgment so long as that policy is

more than tenuous, we hold that similar considerations apply to the

Materiality Provision.

We thus need to examine the State’s policy and its connection to

original signatures. We draw from our earlier discussion of Crawford. There

we quoted the Supreme Court’s giving weight to the legislature’s judgment

in creating “evenhanded restrictions that protect the integrity and reliability

of the electoral process.” Crawford, 553 U.S. 189–90 (quotation marks and

citation omitted). “Evenhanded” is a synonym for nondiscriminatory. The

Crawford Court upheld the State’s remedy to protect against voter fraud —

photo identification — even though evidence of voter fraud was scant and

the most effective means of combatting any fraud that existed was

“debatable.” Id. at 195–96. Obviously, then, a State has considerable

discretion in deciding what is an adequate level of effectiveness to serve its

important interests in voter integrity. When we evaluate the materiality of a

measure, we must give weight to the State’s justification for it.

33

Case: 22-50536 Document: 00517004327 Page: 34 Date Filed: 12/15/2023

No. 22-50536

Application of the tenuousness factor can be seen as involving two

steps. The first is determining if the connection between policy and

requirement is only tenuous. If it is, then the factor supports invalidating the

requirement. To avoid a finding of tenuousness, “there cannot be a total

disconnect between the State’s announced interests and the statute

enacted.” Veasey, 830 F.3d at 262. There must be some measure of “fit

between the expressed policy and the provisions of the law.” Id.

Tenuousness might be found, for example, where a law “fail[s] to correspond

in any meaningful way to the legitimate interests the State claims to have been

advancing.” Id. at 263. Indeed, there must be more than a “dubious

connection between the State’s interests” and the challenged law. Id.

The second step is taken if the connection between a measure relating

to voting and its justification is more than tenuous. That does not mean the

measure is upheld. Instead, under the totality of circumstances, we consider

whether a provision meaningfully corresponds to “legitimate interests the

State claims to have been advancing.” Id. By “meaningful” and

“legitimate” we mean that the measure advances that interest without

imposing pointless burdens. Specifically, we ask: (1) how substantial is the

State’s interest in the “requisite to voting” in which some “error or

omission” exists; (2) does that interest relate to “determining whether such

individual is qualified under State law to vote in such election”; and (3) under

the totality of the circumstances, what is the strength of the connection

between the State’s interest and the measure, i.e., how well does the measure

advance the interest? See 52 U.S.C. § 10101(a)(2)(B). “The issue of

substantiality” of the State’s interest “is a legal determination.” League of

United Latin Am. Citizens, 999 F.2d at 871.

34

Case: 22-50536 Document: 00517004327 Page: 35 Date Filed: 12/15/2023

No. 22-50536

d. Materiality of an original signature

With this caselaw in hand, we now analyze Texas’s arguments to

overturn the district court’s holding that the absence of an original signature

on a voter registration form was an immaterial omission.

Texas’s first argument is that the Materiality Provision requires a

showing of racial discrimination. To hold otherwise, Texas says, presents

constitutional problems. We discussed earlier why the Materiality Provision

was not written in terms of racial discrimination. 10 The key words and

phrases are “error or omission,” “right of any individual to vote,” “on any

record or paper,” “application, registration,” and “not material in

determining whether such individual is qualified” to vote. 52 U.S.C.

§ 10101(a)(2)(B) (emphasis added). No suggestion of a requirement of racial

discrimination exists in any of that language.

Though it is clear that the target of the Materiality Provision was racial

discrimination, the manner chosen to capture the hard-to-predict variations

in “trivial reasons” was by broadly “prohibiting the disqualification of an

individual because of immaterial errors or omissions.” Civil Rights Act of

1963, H.R. Rep. No. 88-914 (1963), Part 1, at 19, reprinted in 12544 U.S.

CONG. SERIAL SET (1963). Thus, the Materiality Provision is not textually

limited to protecting only one race of voters in order to more effectively reach

subtle forms of racial discrimination, i.e., requirements that are pretexts for

racial discrimination.

_____________________

10

Elsewhere in Section 10101, Congress did plainly express this need. Section

10101(a)(1) provides that “[a]ll citizens . . . who are otherwise qualified by law to vote . . .

shall be entitled and allowed to vote . . . without distinction of race.” 52 U.S.C.

§ 10101(a)(1). When Congress “includes particular language in one section of a statute but

omits it in another . . . , it is generally presumed that Congress acts intentionally.” Keene

Corp. v. United States, 508 U.S. 200, 208 (1993) (alteration in original) (citation omitted).

35

Case: 22-50536 Document: 00517004327 Page: 36 Date Filed: 12/15/2023

No. 22-50536

This understanding of the broader language is expressed in one of the

few scholarly articles on the Materiality Provision. Justin Levitt, Resolving

Election Error: The Dynamic Assessment of Materiality, 54 WM. & MARY L.

REV. 83 (2012). “Though the primary motivation for the sponsors of the

materiality provision was clearly the confrontation of racial discrimination,

Congress drafted the provision to embrace errors or omissions beyond those

used to discriminate based on race.” Id. at 148. While “the text of most

other sections of the Civil Rights Act of 1964 ties the relevant right in

question to racial discrimination,” id. at 149 & n.216, Congress did not place

that limitation in the Materiality Provision.

Though we find it reasonable that omitting any reference to racial

discrimination in this provision made it more effective in combatting that

scourge, there remains the issue of whether Congress had authority to

legislate so broadly. Understanding the scope of the problem Congress

sought to rectify, we must decide whether the Materiality Provision was a

“congruen[t] and proportional[]” exercise of power under the Fourteenth

and Fifteenth Amendments. 11 See City of Boerne v. Flores, 521 U.S. 507, 520

(1997).

“Congress may enact so-called prophylactic legislation that

proscribes facially constitutional conduct in order to prevent and deter

unconstitutional conduct.” Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721,

721–22 (2003). The Boerne Court quoted Justice Harlan’s 1970 conclusion

that Congress may prohibit all literacy tests under the Fifteenth Amendment

_____________________

11

The Supreme Court has not decided whether legislation enacted under the

Fifteenth Amendment on voting rights must be “congruen[t] and proportional[]” or

simply a “rational means” of executing a constitutional prohibition. Northwest Austin Mun.

Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009). The Materiality Provision satisfies

either test.

36

Case: 22-50536 Document: 00517004327 Page: 37 Date Filed: 12/15/2023

No. 22-50536

because they “unduly lend themselves to discriminatory application.”

Boerne, 521 U.S. at 526 (quoting Oregon v. Mitchell, 400 U.S. 112, 216 (1970)

(Harlan, J., concurring in part)). We apply that reasoning here to prohibit

those acting under color of law from using immaterial omissions, which were

historically used to prevent racial minorities from voting, from blocking any

individual’s ability to vote — irrespective of racial animus. That prohibition

is a congruent and proportional exercise of congressional power.

Next, Texas argues that requiring an original signature does not “deny

the right of any individual to vote,” quoting Section 10101(a)(2), because (1)

the requirement is part of an expansion of registration methods; (2) rejected

applicants are offered a chance to cure the deficiency; and (3) there are other

registration methods apart from fax.

We cannot agree that if the relevant restriction on voting is packaged

with expansions, the restriction must be valid. Less clear is the effect of a

simple means to cure. This court’s motions panel decided that because the

absence of an original signature on the initial application still allows

registration through alternative means, the requirement was not a denial of

the right to vote. Vote.org, 39 F.4th at 306. We set aside that holding. It is

true that the immaterial requirements some of the State’s voting registrars

were using when this provision was adopted left no alternatives, from simple

misspellings to requiring Black applicants to analyze long sections of the

Constitution. See H.R. Rep. 88-914 (1963), Part 2, at 5. Our doubt about the

efficacy of an ability to cure is that the need to cure an immaterial requirement

creates a hurdle for — even if it is not itself a final denial of — the right to

vote. That issue is left open for a later case. We do not rely today on the fact

alternatives exist if the initial registration fails.

The State also seemingly argues that any requirement in State law that

is a prerequisite to voting is “material” because it is, by definition, a

37

Case: 22-50536 Document: 00517004327 Page: 38 Date Filed: 12/15/2023

No. 22-50536

component of someone’s qualifications to vote. The argument is that “in

Texas, an individual is qualified to vote only if she is registered and to register

via fax she must comply with the [W]et [S]ignature [R]ule.” Thus, Texas

concludes, the Wet Signature requirement is “material” because without a

wet signature, a “person is not qualified to vote under state law.”

We reject that States may circumvent the Materiality Provision by

defining all manner of requirements, no matter how trivial, as being a

qualification to vote and therefore “material.” The Materiality Provision is

a standard that a State’s voter registration requirements must satisfy. The

central question here is whether an original signature is material to

“determining whether such individual is qualified” to vote, giving weight to

the State’s policy for the provision unless it is too tenuous.

Now that we have rejected the arguments that would avoid actually

analyzing the materiality of an original signature, we examine what Texas

argues makes an original signature material.

To restate, Section 10101(a)(2)(B) refers to matters that are material

in deciding whether an “individual is qualified under State law to vote.”

What makes an individual qualified to vote under Texas law? By statute,

there are age, citizenship, residency, capacity, and criminal history

qualifications. TEX. ELECT. CODE § 11.002. There are similar qualifications

for eligibility to register. § 13.001. Undeniable, though, is a premise for all

the statutory qualifications: Are the individuals who are trying to register

actually who they say they are? Texas argues that requiring an original

signature assists in meeting this voting qualification.

Voter identification was the subject of the Supreme Court’s opinion

we discussed earlier that approved Indiana’s photo identification law. See

Crawford, 553 U.S. at 204. Even in our en banc Veasey opinion that invalidated

a statutory requirement for voter identification, we found “[t]he State’s

38

Case: 22-50536 Document: 00517004327 Page: 39 Date Filed: 12/15/2023

No. 22-50536

stated purpose in passing [a voter-identification statute] centered on

protection of the sanctity of voting, avoiding voter fraud, and promoting

public confidence in the voting process. No one questions the legitimacy of

these concerns as motives.” Veasey, 830 F.3d at 231. After remand and a

revision in the law, we upheld the requirements. Veasey v. Abbott, 888 F.3d

792, 796, 802–03 (5th Cir. 2018).

Voter integrity is the principal justification that Texas argues to

support the requirement of an original signature. As a matter of law, we

conclude that is a substantial interest. Is that substantial interest, though,

more than tenuously connected to the requirement of an original signature?

Texas says it is. It argues that an original signature helps assure that

an applicant meets the substantive requirements to vote that are listed above

where the signature is to be placed. The following statements appear directly

above the signature block in the registration forms in this record:

I understand that giving false information to procure a voter

registration is perjury, and a crime under state and federal law.

Conviction of this crime may result in imprisonment up to one

year in jail, a fine up to $4,000, or both. Please read all three

statements to affirm before signing.

I am a resident of this county and a U.S. citizen;

I have not been finally convicted of a felony, or if a felon, I have

completed all of my punishment including any term of

incarceration, parole, supervision, period of probation, or I

have been pardoned; and

I have not been determined by a final judgment of a court

exercising probate jurisdiction to be totally mentally

incapacitated or partially mentally incapacitated without the

right to vote.

Screenshots taken using Vote.org’s app reveal that users did not see

those notices when they completed their applications. The first paragraph of

39

Case: 22-50536 Document: 00517004327 Page: 40 Date Filed: 12/15/2023

No. 22-50536

warnings concerning perjury, imprisonment, and fines is required by statute

to appear on the application form. See TEX. ELECT. CODE § 13.122(a)(1),

(13). The form also may contain any information “considered appropriate

and required by the secretary of state.” § 13.122(a)(14). These statements

affirm the substantive qualifications needed to vote under Texas law. See

§ 11.002.

It is true that no statute requires those warnings to appear next to

where a voter is to sign; distance between the two would potentially dilute

the wet signature’s effectiveness. One statute, though, requires the

Secretary of State to “have the official application forms for registration by

mail printed” and mandated that the Secretary would “furnish the forms

without charge to each registrar.” § 13.121(c). A copy of that form was

attached to Texas’s motion for summary judgment. The space for a

signature is in the same numbered block of the form as the warnings and

directly below them. Even though the requirements that the form contain

the warnings and that it be completed with an original signature are in

different statutory sections, it is reasonable to assume the legislature knew

the structure of the form when it decided in 2021 to require an original

signature.

We accept what Texas is arguing now, that a reasonable

understanding of the legislative judgment is that physically signing the form

with the warnings in front of the applicant, threatening penalties for perjury

and stating the needed qualifications, has some prospect of getting the

attention of many applicants and dissuading false statements that an

electronic signature, without these warnings, does not. Even beyond the

appearance of the printed warnings, Texas insists — echoing the motions

panel — that applying an original signature to a voter registration form carries

“solemn weight” that an imaged signature does not. Vote.org, 39 F.4th at

40

Case: 22-50536 Document: 00517004327 Page: 41 Date Filed: 12/15/2023

No. 22-50536

308. Texas is allowed to have doubts about technological substitutes, at least

when those doubts fit within the strictures of the Materiality Provision.

Signing an application is related to voting qualifications. The district

court agreed: “Texas provides abundant evidentiary and legal support for the

conclusion that a signature is important and vital to determine a voter’s

qualification to vote.” Vote.org, 609 F. Supp. 3d at 529. The district court

faulted Texas for “fail[ing] to show or explain why a wet signature is required

in this instance to determine the registrant’s qualification to vote.” Id.

(emphasis in original). Thus, the district court accepted the validity of

requiring a signature, just not an original one when a registrant wanted to use

Vote.org’s services.

Vote.org makes several criticisms of the effectiveness of an original

signature to deter fraud and of the consistency by which Texas imposes that

requirement. For example, Vote.org insists that original signatures are, in

practice, not used to verify anyone’s identity or to check for fraud. Vote.org

also refers to evidence that some of the county defendants conceded that

there is no practical difference between an original signature and an

electronic one. Moreover, Vote.org highlights that Texas accepts digital

signatures in other contexts, such as when individuals register to vote at the

Department of Public Safety.

Our resolution comes down to whether requiring an original signature

meaningfully, even if quite imperfectly, corresponds to the substantial State

interest in assuring that those applying to vote are who they say they are. Is

there a strong enough connection to overcome the possible denial of

registration to some applicants? We must give weight to a state legislature’s

judgment when it has created “evenhanded restrictions that protect the

integrity and reliability of the electoral process.” Crawford, 553 U.S. 189–90.

Does giving weight to that judgment allow us to conclude that an original

41

Case: 22-50536 Document: 00517004327 Page: 42 Date Filed: 12/15/2023

No. 22-50536

signature is material to deciding the applicant’s identity — the most basic

qualification to vote? Does it have “serious or substantial import”? Material,

OXFORD ENGLISH DICTIONARY, III.6.a. Does requiring an applicant to

provide an original signature on the form with the attendant warnings and

explanations “affect a person’s decision-making”? Material, BLACK’S LAW

DICTIONARY.

We answer, first, that Texas’s interest in voter integrity is substantial.

Second, that interest relates to the qualifications to vote — are the registrants

who they claim to be? Finally, most voter registration forms likely are

completed far from any government office or employee. That limits the

methods of assuring the identity of the registrant. Though the effect on an

applicant of seeing these explanations and warnings above the signature block

may not be dramatic, Texas’s justification that an original signature advances

voter integrity is legitimate, is far more than tenuous, and, under the totality

of the circumstances, makes such a signature a material requirement.

IV. First Amendment claim

Vote.org also brought a First Amendment claim. “Where a state

election rule directly restricts or otherwise burdens an individual’s First

Amendment rights, courts apply a balancing test derived from two Supreme

Court decisions, Anderson [v. Celebrezze, 460 U.S. 780 (1983)], and Burdick

v. Takushi, 504 U.S. 428 (1992).” Voting for Am., Inc. v. Steen, 732 F.3d 382,

387 (5th Cir. 2013). The Anderson-Burdick rule requires courts to weigh the

“character and magnitude of the asserted injury” against the “precise

interests put forward by the State,” “taking into consideration the extent to

which those interests make it necessary to burden the plaintiff’s rights.” Id.

(quoting Burdick, 504 U.S. at 434). If a “severe burden on First Amendment

rights” is created, the state rule “must be narrowly drawn to advance a state

interest of compelling importance. Lesser burdens, however, trigger less

42

Case: 22-50536 Document: 00517004327 Page: 43 Date Filed: 12/15/2023

No. 22-50536

exacting review, and a State’s important regulatory interests will usually be

enough to justify reasonable, nondiscriminatory restrictions.” Id. (quotation

marks and citations omitted).

The district court, focusing on the original signature requirement in

isolation, found that it imposed a burden that is “more than slight.” Texas

argues that looking at the Rule in a vacuum was error; instead, the court

should have considered the panoply of registration options available to Texas

voters. In one of our opinions, we evaluated Supreme Court precedents and

explained that “the severity analysis is not limited to the impact that a law

has on a small number of voters.” Richardson v. Tex. Sec’y of State, 978 F.3d

220, 236 (5th Cir. 2020) (examining Crawford, 553 U.S. 181). Vote.org cites

a Sixth Circuit case for the proposition that restrictions should be looked at

only “from the perspective of [the] affected electors.” Mays v. LaRose, 951

F.3d 775, 785 (6th Cir. 2020). Mays’s statement, however, was confined to

laws that effect “disparate treatment” because they are facially

discriminatory. Id. at 785. By contrast, the Wet Signature Rule here is

generally applicable. Cf. Crawford, 553 U.S. at 207 (Scalia, J., concurring in

the judgment) (“[A] generally applicable law with disparate impact is not

unconstitutional.”).

The original signature requirement, then, must be viewed in light of

other available registration options, including submissions via Department of

Public Safety, direct mail, personal delivery, and volunteer deputy registrars.

TEX. ELEC. CODE §§ 13.002(a), 13.031, 13.038, 13.041. Accounting for these

other options, the burden imposed by the requirement is only “slight.”

Crawford, 553 U.S. at 191.

Texas argues that the requirement advances the State’s interest in

multiple respects. It guarantees that registrants attest to meeting the

qualifications to vote and impresses upon registrants “the seriousness” of

43

Case: 22-50536 Document: 00517004327 Page: 44 Date Filed: 12/15/2023

No. 22-50536

registering. It also ensures security and reliability that a third-party app,

Texas says, cannot provide.

Texas’s interests in reliability and fraud deterrence are “legitimate.”

Id. at 191, 196. As described above, original signatures may dissuade

improper individuals from registering. Further, Texas may prefer the

uniformity that original signatures provide, especially if that uniformity

produces signatures that are “superior” and less prone to technical defects

than those gathered by third-party apps. That Texas allows electronic

submissions via the Department of Public Safety does not necessarily alter

the calculus. Texas exerts more control over and may legitimately have more

confidence in that department’s systems.

Where the challenged law “imposes only a limited burden,” the

constitutional inquiry grants state governments considerable leeway. See id.

at 203. Texas’s interests in ensuring reliability and reducing fraud are

“sufficiently weighty” to protect the Wet Signature Rule from constitutional

attack. See id. at 190–91.

We REVERSE and RENDER judgment for the defendants.

44

Case: 22-50536 Document: 00517004327 Page: 45 Date Filed: 12/15/2023

No. 22-50536

Stephen A. Higginson, Circuit Judge, dissenting:

I agree in large part with the majority opinion’s analysis. I agree with

the panel majority that Vote.org has Article III standing; that it can privately

enforce section 101 of the Civil Rights Act of 1964 (the “Materiality

Provision”), 52 U.S.C. § 10101(a)(2)(B); that a Materiality Provision claim

does not require evidence of racial discrimination; that a chance to cure

rejected applications does not render an immaterial provision material; and

that a state may not circumvent the Materiality Provision by defining any

trivial requirement as a “material” qualification to vote. But I cannot agree

that Texas’s “wet signature” requirement 1—which Texas officials

conceded serves “no practical purpose”—is “material in determining

whether [a Texan] is qualified under [Texas] law to vote.” 52 U.S.C.

§ 10101(a)(2)(B). Because Texas’s wet-signature requirement violates the

Materiality Provision, I must therefore respectfully dissent.

The district court aptly described Vote.org’s mission and outreach

activities as including: “(1) us[ing] technology to simplify political

engagement, increase voter turnout, and strengthen American democracy;

(2) work[ing] to support low-propensity voters, including racial and ethnic

minorities and younger voters who tend to have lower voter-turnout rates;

and (3) help[ing] Texans register to vote and verify registration status.”

Vote.org’s app “is critical to ensure that voters with limited access to

_____________________

1

Like the parties and the majority, I will refer to § 13.143(d-2) of the Texas Election

Code as the “wet signature” requirement. Section 13.143(d-2) provides:

For a registration application submitted by telephonic facsimile machine

to be effective, a copy of the original registration application containing the

voter’s original signature must be submitted by personal delivery or mail

and be received by the registrar not later than the fourth business day after

the transmission by telephonic facsimile machine is received.

Tex. Elec. Code Ann. § 13.143(d-2) (West 2023).

45

Case: 22-50536 Document: 00517004327 Page: 46 Date Filed: 12/15/2023

No. 22-50536

printers or mailing facilities, or who otherwise need assistance to register to

vote, have meaningful opportunities to do so.” Complaint at 4, Vote.org v.

Callanen, 609 F. Supp. 3d 515 (W.D. Tex. 2022) (No. 5:21-CV-649), ECF

No. 1. Vote.org seeks to maximize registration of Americans eligible to vote,

yet its effort to engage Americans in self-government faces legal hurdles

around the country. See, e.g., Vote.org v. Ga. State Election Bd., No. 1:22-CV-

01734-JPB, 2023 WL 2432011 (N.D. Ga. Mar. 9, 2023); Vote.org v. Byrd, No.

4:23-cv-111-AW-MAF (N.D. Fla. June 13, 2023).

I.

The majority invokes a line of constitutional vote-denial cases,

including Crawford v. Marion County Election Board, 553 U.S. 181 (2008), for

the proposition that “[s]tates have considerable discretion in establishing

rules for their own elections.” Op. 26-27 (citing Crawford, 553 U.S. 181;

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

428 (1992)). But we have previously recognized that Crawford “only

considered a First and Fourteenth Amendment challenge, which involves a

different analytical framework than what we use for [statutory] claims.”

Veasey v. Abbott, 830 F.3d 216, 249 (5th Cir. 2016) (en banc). And the

Materiality Provision expressly limits states’ purported “considerable

discretion”: States cannot “deny the right of any individual to vote in any

election because of an [immaterial] error or omission on any record or paper

relating to any application, registration, or other act requisite to voting.” 52

U.S.C. § 10101(a)(2)(B). The “considerable deference to be given to [state]

election procedures” thus has no place in a materiality analysis. Op. 26.

The majority likewise borrows the “tenuousness” factor from the

multifactorial test in Thornburg v. Gingles, 478 U.S. 30 (1986)—which applies

to section 2 claims under the Voting Rights Act—in its materiality analysis.

The Gingles factors are “used to help determine whether there is a sufficient

46

Case: 22-50536 Document: 00517004327 Page: 47 Date Filed: 12/15/2023

No. 22-50536

causal link between the disparate burden imposed and social and historical

conditions produced by discrimination.” Veasey, 830 F.3d at 245. Unlike a

section 2 claim, though—as the majority recognizes—a Materiality Provision

claim need not allege any evidence of discrimination. Op. 35-37. More

importantly, nothing in the Materiality Provision’s text or existing case law

requires plaintiffs to show a “disparate burden” on the right to vote; instead,

plaintiffs need only demonstrate that the state’s procedural requirement “is

not material in determining whether” they are “qualified” to vote. 52 U.S.C.

§ 10101(a)(2)(B). Accordingly, reliance on the Gingles factors is inapposite

in the materiality context. Cf. Schwier v. Cox, 340 F.3d 1284, 1294 (11th Cir.

2003) (explaining that the Materiality Provision “was intended to address

the practice of requiring unnecessary information for voter registration with

the intent that such requirements would increase the number of errors or

omissions on the application forms, thus providing an excuse to disqualify

potential voters”); Migliori v. Cohen, 36 F.4th 153, 163 (3d Cir.) (“Fraud

deterrence and prevention are at best tangentially related to determining

whether someone is qualified to vote. But whatever sort of fraud deterrence

or prevention this requirement may serve, it in no way helps the [state]

determine whether a voter’s age, residence, citizenship, or felony status

qualifies them to vote.”), cert. granted, judgment vacated sub nom. Ritter v.

Migliori, 143 S. Ct. 297 (2022).

II.

The crux of the majority’s materiality analysis reduces to one

sentence: “Texas says it is.” Op. 39. But even if we accept the majority’s

importation of Crawford and Gingles into the materiality context, deference

to Texas’s election procedures cannot save the wet-signature requirement.

The majority characterizes the second step of the tenuousness analysis as

requiring “that the measure advances [the state’s] interest without imposing

47

Case: 22-50536 Document: 00517004327 Page: 48 Date Filed: 12/15/2023

No. 22-50536

pointless burdens.” Op. 34. But as the district court carefully found,

factually, the wet-signature requirement is undisputedly pointless.

The district court found the following undisputed facts: County

registrars admitted that “they do not use a wet signature at any time or with

any form of voter registration submission to determine a voter’s qualification

to vote.” They “do not compare the telephonic-facsimile submitted

signature against the wet signature, nor do they use either signature for

identity verification purposes.” In fact, they typically destroy the original

application once they have entered the applicant’s information into their

computer system and saved an image of the signature.

The district court found that when county officials “investigate

reported or suspected voter fraud,” they use only “a scanned image of the

registration signature[], not the original, wet signature.” Indeed, “[a]ny

fraud investigation is conducted completely electronically” and “[a]t no time

is an original, wet signature used.”

Tellingly, officials conceded that there is no “difference in purpose or

function between a ‘wet ink’ signature and an electronic or imaged

signature.” Texas has no problem accepting registration applicants’

signatures in electronic form when completed at Texas Department of Public

Safety offices. Nor does Texas object to the use of electronic signatures in

contracts, advance health directives, divorce decrees, and real-property

closings. See Tex. Bus. & Com. Code Ann. § 322.007(d) (West 2023);

Tex. Health & Safety Code Ann. § 166.011 (West 2023); Bartee v.

Bartee, No. 11-18-0017-CV, 2020 WL 524909, at *3 (Tex. Ct. App. Jan. 31,

2020); Tex. Prop. Code Ann. § 12.0013 (West 2023). The record

contains a simple explanation for Texas’s singular interest in a wet signature

in the context of registration applications submitted by fax machine: Texas

officials explicitly drafted § 13.143(d-2) to prevent the use of Vote.org’s e-

48

Case: 22-50536 Document: 00517004327 Page: 49 Date Filed: 12/15/2023

No. 22-50536

sign tool. Just like the states’ procedural requirements in Schwier and

Migliori, the immateriality of Texas’s wet-signature requirement is “fairly

obvious.” Op. 25.

And there’s the rub: Although I suppose it might hypothetically be

possible that a wet-signature requirement could materially determine whether

a voter is qualified under Texas law, Texas—and the majority—cannot point

to any evidence of the requirement’s materiality in the substantial record

before us, on which we must decide this case. Instead, Texas officials’

admissions that they do not use the wet signature in any capacity to

determine a voter’s qualifications “slams the door shut on any argument that

[a wet signature] is material.” Migliori, 36 F.4th at 164.

III.

Even if we accept the majority’s application of Crawford and Gingles

to Materiality Provision claims, and even if we put to one side the factual

immateriality of the wet-signature requirement, the majority’s analysis still

fails on its own terms. Texas might have had an argument that Vote.org’s

app implicates § 13.122(a) of the Texas Election Code if the app’s electronic

registration application form omits the prescribed warning statements, but

Texas did not make that argument and, regardless, that has nothing to do with

the wet-signature requirement. See Tex. Elec. Code Ann.

§ 13.122(a)(1), (13) (West 2023) (requiring, among other statements “on an

officially prescribed registration application form,” the following two

statements: (1) “I understand that giving false information to procure a voter

registration is perjury and a crime under state and federal law” and (2) “a

statement warning that a conviction for making a false statement may result

in imprisonment for up to the maximum amount of time provided by law, a

fine of up to the maximum amount provided by law, or both the

imprisonment and the fine”). By placing the weight of its materiality analysis

49

Case: 22-50536 Document: 00517004327 Page: 50 Date Filed: 12/15/2023

No. 22-50536

on § 13.122(a)’s required statements, the majority effectively acknowledges

that the wet-signature requirement is itself immaterial. See Op. 39-41.

That is because the “solemnity” argument put forth by Texas (and

accepted by the majority) is distinct from the wet-signature requirement.

Nothing ties the wet signature itself to the statements above the signature

block. In fact, Texas law does not even dictate where the prescribed

statements are to be included in the registration application form. See Tex.

Elec. Code Ann. § 13.122(a) (West 2023). That does not change based

on whether a person signs with a pen or an electronic signature. And there is

no evidence in the record that the wet signature itself—as opposed to a

digitally imaged signature—adds any sort of “solemnity.” Indeed, the

majority’s assertion that the wet-signature requirement is material hinges on

“the effect on an applicant of seeing these explanations and warnings above

the signature block.” Op. 42; see also Op. 40 (describing Texas’s

“solemnity” argument as “signing the form with the warnings in front of the

applicant, threatening penalties for perjury and stating the needed

qualifications, has some prospect of getting the attention of many applicants

and dissuading false statements that an electronic signature, without these

warnings, does not” (emphasis added)).

The majority thus loses sight of the Texas law at issue in this case:

Vote.org did not challenge the materiality of § 13.122(a); it challenged the

materiality of § 13.143(d-2). Even if Vote.org’s app might have implicated

§ 13.122(a), the wet-signature requirement—codified in a separate provision

of the Texas Election Code—has nothing to do with those warnings. Again,

it requires only that “a copy of the original registration application containing

the voter’s original signature” be submitted to the registrar within four

business days of “the transmission by telephonic facsimile machine.” Tex.

Elec. Code Ann. § 13.143(d-2) (West 2023).

50

Case: 22-50536 Document: 00517004327 Page: 51 Date Filed: 12/15/2023

No. 22-50536

Because the wet-signature requirement is unrelated to the warning

statements in § 13.122(a) on which the majority rests its materiality holding,

I agree with the district court and see nothing to sustain the wet-signature

requirement: No evidence in the record supports—or even peripherally

suggests—that the wet signature itself is material in determining whether a

Texan is qualified to vote. Quite the contrary. Texas officials explicitly

drafted § 13.143(d-2) to prevent the use of Vote.org’s e-sign tool.

Consequently, the wet-signature requirement violates the Materiality

Provision and the district court correctly enjoined its enforcement.

IV.

I would AFFIRM the district court’s grant of summary judgment for

Vote.org on its statutory claim, and, therefore, I would not reach the

constitutional claims.

51