Professional Documents
Culture Documents
5th Circuit Opinion
5th Circuit Opinion
____________ FILED
December 15, 2023
No. 22-50536 Lyle W. Cayce
____________ Clerk
Vote.Org,
Plaintiff—Appellee,
versus
Defendants,
versus
Intervenor Defendants—Appellants.
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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
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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.
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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
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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).
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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.
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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.
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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
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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.
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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.
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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
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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)).
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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:
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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.
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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
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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
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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.
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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
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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.
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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
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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
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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).
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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).
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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.
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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
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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-
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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
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The judgment entered provides that each party bear its own costs
on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________
Nancy F. Dolly, Deputy Clerk
Enclosure(s)
Mr. Michael Abrams
Mr. Noah Bokat-Lindell
Ms. Tovah Calderon
Mr. Christopher D. Dodge
Mr. Robert E. Henneke
Ms. Sophia Lin Lakin
Mr. Christopher J. Merken
Mr. Uzoma Nkem Nkwonta
Ms. Autumn Hamit Patterson
Ms. Lanora Christine Pettit
Mr. Ari J. Savitzky
Mr. Chance Weldon