Richardson v. Tex. Sec'y of State, No. 20-50774

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Jerry E. Smith, Circuit Judge
• Citation: 978 F.3d 220
• Parties: Doctor George RICHARDSON; Rosalie Weisfeld; Move Texas Civic Fund; League of Women Voters of Texas; Austin Justice Coalition; Coalition of Texans with Disabilities, Plaintiffs—Appellees, v. TEXAS SECRETARY OF STATE, Ruth R. Hughs, Defendant—Appellant.
• Docket Number: No. 20-50774
• Decision Date: 19 October 2020

978 F.3d 220

Doctor George RICHARDSON; Rosalie Weisfeld; Move Texas Civic Fund; League of Women Voters of Texas; Austin Justice Coalition; Coalition of Texans with Disabilities, Plaintiffs—Appellees,
v.
TEXAS SECRETARY OF STATE, Ruth R. Hughs, Defendant—Appellant.

No. 20-50774

United States Court of Appeals, Fifth Circuit.

FILED October 19, 2020

Jerad Wayne Najvar, Esq., Austin M.B. Whatley, Najvar Law Firm, P.L.L.C., Houston, TX, for Movants-Appellants.

Hani Mirza, Zachary Dolling, Texas Civil Rights Project, Audra White, Willkie Farr & Gallagher, L.L.P., Houston, TX, Ryan Vincent Cox, Senior Attorney, Mimi Murray Digby Marziani, Texas Civil Rights Project, Austin, TX, Samuel Maclain Kalar, Richard Mancino, JoAnna Barbara Suriani, Willkie Farr & Gallagher, L.L.P., New York, NY, for Plaintiffs-Appellees.

Kyle Douglas Hawkins, Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor General, Anne Marie Mackin, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, Jerad Wayne Najvar, Esq., Najvar Law Firm, P.L.L.C., Houston, TX, for Defendant-Appellant.

Before Higginbotham, Smith, and Oldham, Circuit Judges.

Jerry E. Smith, Circuit Judge:

978 F.3d 224

The United States is a few days from the November 3, 2020, General Election. Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic.¹ One of their many pressing concerns is to ensure the integrity of the ballot by adhering to the state's election-security procedures. And the importance of electoral vigilance rises with the increase in the number of mail-in ballots, a form of voting in which "the potential and reality of fraud is much greater ... than with in-person voting." Veasey v. Abbott , 830 F.3d 216, 239 (5th Cir. 2016) (en banc). "Absentee ballots remain the largest source of potential voter fraud ...."²

In a well-intentioned but sweeping order issued less than two months before the election,³ however, the district court minimizes Texas's interest in preserving the integrity of its elections and takes it upon itself to rewrite the Legislature's mail-in ballot signature-verification and voter-notification procedures. At a time when the need to ensure election security is at its zenith, the district court orders that, if the Secretary of State does not adopt its preferred procedures, election officials must stop altogether rejecting ballots with mismatched signatures.

Because Texas's strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state's voting procedures place on the right to vote, we stay the injunction pending appeal.

I.

Though it is not constitutionally required to do so,⁴ Texas offers qualifying citizens the option to vote by mail. See TEX. ELEC. CODE §§ 82.001 –004.⁵ Specifically, the state extends the privilege to over-65 voters, the disabled, and those either in jail or otherwise absent from their county on election day. Id. To further its compelling interest in safeguarding the integrity of

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the election process, Texas conditions the vote-by-mail privilege on compliance with various safeguards. One of those, at issue here, is signature verification.

To vote by mail, a voter must first apply for a mail-in ballot. § 84.001(a). The applicant must sign, § 84.001(b), and timely submit the application by mail to the early voting clerk, § 84.001(d). A witness may sign the application if the applicant cannot sign because of physical disability or illiteracy. § 1.011(a). Once a voter applies and is deemed eligible to vote by mail, the Early Voting Clerk must provide the balloting materials to the voter by mail. §§ 86.001(b), 86.003(a). Included in those materials are the ballot, ballot envelope, and carrier envelope. § 86.002(a).

After receiving those materials, a voter who wishes to cast a ballot must fill out the ballot, seal the ballot envelope, place it in the carrier envelope, § 86.005(c), and timely return it, § 86.007. Additionally, the voter must sign⁶ the certificate on the carrier envelope, § 86.005(c), which "certif[ies] that the enclosed ballot expresses [the voter's] wishes independent of any dictation or undue persuasion by any person," § 86.013(c).

The Early Voting Ballot Board ("EVBB") is responsible for processing the results of early voting. § 87.001.⁷ The Early Voting Clerk may appoint, in addition to the EVBB, a Signature Verification Committee ("SVC"). § 87.027(a).⁸ Upon receipt of the mail-in ballots, the Early Voting Clerk must timely deliver the ballots to the SVC or, if no SVC is appointed, to the EVBB. §§ 87.027(h), 87.021(2), 87.022–024. If no SVC is appointed, the EVBB receives and reviews each ballot to determine whether to accept it. § 87.041(a).

Relevant here, the EVBB may accept a ballot "only if ... neither the voter's signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness ...." § 87.041(b)(2). In making that determination, the EVBB compares the two signatures and "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." § 87.041(e). If the EVBB determines that a ballot is not acceptable—as a result of either the signature-verification procedure or another of § 87.041(b)’s requirements—the ballot is rejected, and the vote is not counted. §§ 87.041(d), 87.043(c).

If the Early Voting Clerk appoints an SVC, the committee receives the ballots and makes the signature-verification determination before delivering the ballots to the EVBB. § 87.027(h)–(i). The SVC follows a similar, though slightly more robust, procedure for verifying signatures than does the EVBB. Compare § 87.027(i) with § 87.041(b)(2). The Code instructs the SVC to compare the two signatures on the

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ballot application and the carrier envelope certificate "to determine whether the signatures are those of the voter." § 87.027(i). It also permits the SVC to aid its determination by comparing the two 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. A determination that the signatures do not belong to the voter "must be made by a majority vote of the committee's membership." Id.⁹

Once the SVC has made its signature-verification determinations, the committee's chair delivers the ballots to the EVBB. Id. The EVBB follows the same procedures it otherwise would, except that it is bound by the SVC's determination that the signatures belong to the voter. § 87.027(j). Conversely, if the EVBB believes that the SVC erroneously determined that the ballot failed the signature-verification procedure, it may reverse that determination by a majority vote and accept the ballot. Id. Thus, if either body determines that the signatures belong to the voter, that determination is final, and the ballot may not be rejected on that basis.

If the EVBB rejects a ballot, it must note the reason on the carrier envelope. § 87.043(d). When its review is complete, the EVBB places the rejected ballots into an envelope or envelopes, records the number of rejected ballots in the envelope, and seals it. § 87.043(a). The EVBB then delivers the rejected ballots to the general custodian of election records. § 87.043(c).

No later than ten days after the date of the election, the EVBB must provide written notice of its rejection to the voter at the address on the ballot application. § 87.0431(a). Not more than thirty days after the election, the Early Voting Clerk must notify the attorney general of the EVBB's rejections and provide the attorney general with certified copies of the rejected voters’ carrier envelopes and corresponding ballot applications. § 87.0431(b)(3). Though a voter must receive notice that his ballot was rejected, the Code does not require an opportunity to challenge that decision.¹⁰

II.

The plaintiffs challenged Texas's absentee-ballot system in August 2019, suing the Secretary of State, Ruth Hughs; the Brazos County Elections Administrator, Trudy Hancock; and the City of McAllen's Secretary, Perla Lara. The plaintiffs—a group comprised of two persons who had absentee ballots rejected in previous elections and organizations involved in voter registration, education, outreach, and support—raised several claims. They maintain that Texas's signature-comparison and voter-notification procedures violate (1) the Due Process Clause of the Fourteenth Amendment, (2) the Equal Protection Clause of the Fourteenth Amendment, (3) the Americans with Disabilities Act, and (4) the Rehabilitation Act of 1973.

The district court denied defendants’ motions to dismiss, and the parties conducted discovery, which lasted until May 2020, after which both sides moved for summary judgment. In August 2020, the

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district court requested supplemental briefing regarding what relief it should provide if it found for the...