Richardson v. Tex. Sec'y of State

Citation485 F.Supp.3d 744
Decision Date08 September 2020
Docket NumberCivil No. SA-19-cv-00963-OLG
Parties Dr. George RICHARDSON, Rosalie Weisfeld, Austin Justice Coalition, Coalition of Texans with Disabilities, Move Texas Civic Fund, and League of Women Voters of Texas, Plaintiffs, v. TEXAS SECRETARY OF STATE, Trudy Hancock, in her official capacity as Brazos County Elections Administrator, and Perla Lara, in her official capacity as City of McAllen, Texas Secretary, Defendants.
CourtUnited States District Courts. 5th Circuit. Western District of Texas

Mimi M.D. Marziani, Rebecca E. Harrison Stevens, Texas Civil Rights Project, Austin, TX, Ryan V. Cox, Texas Civil Rights Project, San Antonio, TX, Audra White, Denis A. Fallon, Garrett Johnston, Jennifer J. Hardy, Willkie Farr & Gallagher LLP, Zachary Dolling, Texas Civil Rights Project, Houston, TX, JoAnna Suriani, Willkie Farr & Gallagher LLP, Washington, DC, P. Maxwell Griffith, Richard Mancino, Samuel Kalar, Willkie Farr & Gallagher LLP, New York, NY, Hani Mirza, Texas Civil Rights Project, Dallas, TX, for Plaintiffs.

Anne Marie Mackin, Office of the Attorney General, Austin, TX, for Defendant Texas Secretary of State.

Jason Eric Magee, Robert T. Bass, Allison, Bass & Associates, LLP, Austin, TX, for Defendant Trudy Hancock.

Claude Robert Heath, Gunnar Peterson Seaquist, Bickerstaff Heath Delgado Acosta LLP, Austin, TX, Austin W. Stevenson, Isaac J. Tawil, City of McAllen, City Attorney's Office, McAllen, TX, for Defendant Perla Lara.

MEMORANDUM OPINION AND ORDER

ORLANDO L. GARCIA, Chief United States District Judge

On this date, the Court considered PlaintiffsMotion for Summary Judgment (docket no. 65) ("Plaintiffs’ Motion") and the Texas Secretary of State's Motion for Summary Judgment (docket no. 70) (the "Secretary's Motion"). Having reviewed the complete record and for the reasons set forth below, Plaintiffs’ Motion is granted in part, and the Secretary's Motion is denied in part. Specifically, Plaintiffs’ Motion is granted to the extent Plaintiff Rosalie Weisfeld and Plaintiff Coalition of Texans with Disabilities seek summary judgment on their due process claims ("Count One") and "undue burden"/"right to vote" equal protection claims ("Count Two") against the Secretary, and the Secretary's Motion is denied as to those claims.1 Based on those claims, the Court concludes that immediate, partial injunctive relief is also appropriate.2

BACKGROUND

This case arises from provisions of the Texas Election Code (the "Election Code" or "Code") related to the process of voting by mail, and specifically, the signature-comparison procedures utilized to determine whether a ballot should be accepted or rejected. Like many states, the State of Texas ("Texas" or the "State") offers certain voters the opportunity to vote by mail. Specifically, Texas offers the opportunity to vote by mail to voters who are outside of their county of residence during an election, voters with disabilities, voters 65 years-of-age or older, and certain voters confined in jail but otherwise eligible to vote. See Tex. Elec. Code §§ 82.001 -.004.

In order to vote by mail, an eligible voter must first request a mail-in ballot by completing a mail-in ballot application at least 11 days before the election day. Id. at §§ 84.001, 84.007. As part of the application, the voter signs a certificate attesting that the voter "certif[ies] that the information given in this application is true" and "understand[s] that giving false information in this application is a crime." Docket no. 65-1, Ex. 6. If the voter's application complies with all requirements, local election officials provide the voter with an official ballot, ballot envelope and carrier envelope. See Tex. Elec. Code §§ 86.001(b), 86.002(a). In order to cast his or her vote by mail, the voter must mark the ballot, place it in the official ballot envelope provided by the county, seal the official ballot envelope, place the official ballot envelope in the carrier envelope provided by the county, seal the carrier envelope, and sign the certificate on the carrier envelope. Id. at § 86.005(a)-(c). Specifically, the carrier envelope certificate requires the voter to "certify that the enclosed ballot expresses [the voter's] wishes independent of any dictation or undue persuasion by any person," and includes a line for the voter's signature across the flap of the envelope. Id. at § 86.013(c). The carrier envelope then must be returned to the county in a timely manner. Id. at § 86.006(a). As shown, neither the ballot application nor the carrier envelope (i) instruct the voter how to sign his or her name or (ii) notify the voter that the signatures on the application and carrier envelope will be used as part of any comparison process. See docket no. 84, Ingram Dep. at 32:25-35:4, 103:9-15.

Following the receipt of a voter's mail-in ballot, the Election Code instructs each local jurisdiction's Early Voting Ballot Board ("EVBB") or Signature Verification Committee ("SVC") to open the ballot envelope and determine whether to accept or reject the voter's ballot.3 See id. at §§ 87.001, 87.027(a-l), 87.041. The Section states that a ballot may only be accepted if various conditions are satisfied. Id. at § 87.041(b). One such provision, which is central to this lawsuit, states that a ballot must be rejected if the EVBB or SVC concludes that the signature on the carrier envelope or ballot application was "executed by a person other than the voter, unless signed by a witness." Id. at § 87.041(b)(2).4

The Election Code provides guidance as to which signatures an EVBB or SVC should use for the purposes of comparison and states that the "committee shall compare the signature on each carrier envelope certificate ... with the signature on the voter's ballot application." See id. at § 87.027(i); see also id. at § 87.041(b)(2). The Code provides that the "committee may also compare the signatures with any two or more signatures of the voter made within the preceding six years and on file with the county clerk or voter registrar." Id. at §§ 87.027(i), 87.041(e). However, the Election Code contains no guidance as to the appropriate procedure or standard for determining whether two signatures "match," and instead, signature reviewers are merely instructed to use their "best judgment." See docket no. 65-1, Ex. 4 p. 35; docket no. 84, Ingram Dep. at 50:15-51:5. Similarly, the Election Code does not require that EVBB or SVC members receive training in evaluating signatures. See docket no. 65-1, Ex. 4; docket no. 84, Ingram Dep. at 49:2-5; docket no. 84, Hancock Dep. at 31:8-19, 73:6-17. For that reason, one local election official agreed that—under the existing policies—whether a ballot is accepted or rejected very well may vary depending on which members of the review committee conduct the comparison. See docket no. 84, Hancock Dep. at 123:4-12.

If a ballot is rejected on the basis of the EVBB's or SVC's signature comparison, the Election Code only requires that the voter be notified about the rejection of his or her ballot within 10 days following the election. Id. at § 87.0431(a). Prior to a mail-in ballot's rejection, the Election Code does not require that local jurisdictions provide an opportunity for the voter to (i) verify his or her identity, (ii) demonstrate that he or she did indeed sign the relevant documents, or (iii) otherwise challenge the signature verification determination. Instead, the Election Code states that a "county election officer may petition a district court for injunctive or other relief as the court determines appropriate" if the county election officer "determines a ballot was incorrectly rejected or accepted by the [EVBB]." Id. at § 87.127(a) (emphasis added). Interestingly, Texas voters who make other mistakes during the voting process—including those who fail to bring photo identification for in person voting and those who forget to sign the carrier envelope altogether—are provided with a specific opportunity to "cure" under the Election Code prior to their ballot's rejection. See Tex. Elec. Code §§ 63.001(g), 65.0541, 86.011(d). Unsurprisingly, Plaintiffs assert—and the Texas Secretary of State's (the "Secretary") Director of Elections acknowledged—that the existing signature-comparison procedures may result in certain mail-in ballots being improperly rejected. See docket no. 84, Ingram Dep. 76:23-77:7. And as a result of the implemented procedures, the record demonstrates that Texas counties rejected at least 3,746 mail-in ballots during the 2018 general election and at least 1,567 mail-in ballots during the 2016 general election solely on the basis of mismatching signatures. See docket no. 65-1, Ex. 16.

Plaintiffs in this case include both individuals who had their votes rejected on the basis of signature "mismatches" and various organizations whose members and/or whose services are allegedly impacted by the State's mail-in voting signature-comparison procedures. Plaintiff Dr. George Richardson ("Richardson") had his mail-in ballot rejected by Brazos County officials during the 2018 general election. See docket no. 65-1, Ex. 25. Similarly, during a city run-off election in 2019, the City of McAllen rejected Plaintiff Rosalie Weisfeld's ("Weisfeld," and with Richardson, the "Individual Plaintiffs") mail-in ballot. See docket no. 65-1, Ex. 33. The record demonstrates that the Individual Plaintiffs were each eligible to vote by mail,5 each mailed in his or her respective ballot well before the election date, and each complied with all instructions on both the application and carrier envelope, including by signing each document in the appropriate certification portion. See docket no. 65-1, Exs. 18-20, 25, 30-33. Notwithstanding those efforts, each Individual Plaintiff's ballot was nonetheless rejected on the basis of a perceived signature "mismatch," and each Individual Plaintiff was not notified until after the election that his or her respective ballot had been rejected. See docket no....

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    ...that a plaintiff demonstrate that he or she is certain to have her ballot rejected." Richardson v. Texas Sec'y of State , No. SA-19-CV-00963-OLG, 485 F.Supp.3d 744, 760 (W.D. Tex. Sept. 8, 2020). Plaintiffs demonstrated harm by showing that they intended to vote using ballot centers that ha......
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    ...Richardson v. Tex. Sec'y of State (Richardson II ), 978 F.3d 220, 227 (5th Cir. 2020) ; see also Richardson v. Tex. Sec'y of State (Richardson I ), 485 F. Supp. 3d 744, 801–03 (W.D. Tex. 2020). The Secretary timely appealed, and a motions panel stayed the injunction. Richardson II , 978 F.3......
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