Vote.org v. Callanen

• Decision Date: 16 June 2022
• Docket Number: Case No. SA-21-CV-00649-JKP
• Citation: 609 F.Supp.3d 515
• Parties: VOTE.ORG, Plaintiff, v. Jacquelyn CALLANEN, in her official capacity as the Bexar County Elections Administrator; Bruce Elfant, in his official capacity as the Travis County Tax Assessor-Collector; Remi Garza, in his official capacity as the Cameron County Elections Administrator; and Michael Scarpello, in his official capacity as the Dallas County Elections Administrator, Defendants, 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.
• Court: U.S. District Court — Western District of Texas

609 F.Supp.3d 515

VOTE.ORG, Plaintiff,

v. Jacquelyn CALLANEN, in her official capacity as the Bexar County Elections Administrator; Bruce Elfant, in his official capacity as the Travis County Tax Assessor-Collector; Remi Garza, in his official capacity as the Cameron County Elections Administrator; and Michael Scarpello, in his official capacity as the Dallas County Elections Administrator, Defendants,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.

Case No. SA-21-CV-00649-JKP

United States District Court, W.D. Texas, San Antonio Division.

Signed June 16, 2022

Graham White, Pro Hac Vice, Joseph N. Posimato, Joshua L. Harris, Pro Hac Vice, Kathryn E. Yukevich, Meaghan E. Mixon, Noah B. Baron, Pro Hac Vice, Uzoma N. Nkwonta, Alexander Atkins, Elias Law Group LLP, Washington, DC, Jonathan Patrick Hawley, Elias Law Group LLP, Seattle, WA, John Russell Hardin, Perkins Coie, LLP, Dallas, TX, for Plaintiff.

Larry L. Roberson, Lisa V. Cubriel, Bexar County District Attorney's Office, Civil Division, San Antonio, TX, Robert D. Green, United States Attorney's Office, Civil Division, San Antonio, TX, for Defendant Jacquelyn Callanen.

Cynthia W. Veidt, Leslie W. Dippel, Sherine Elizabeth Thomas, Travis County Attorney's Office, Austin, TX, for Defendant Bruce Elfant.

Daniel Nemecio Lopez, Pro Hac Vice, Cameron County, Brownsville, TX, for Defendant Remi Garza.

Barbara S. Nicholas, Assistant District Attorney, Civil Division, Dallas, TX, Earl S. Nesbitt, Walters Balido & Crain L.L.P., Dallas, TX, Ben L. Stool, Criminal District Attorney's Office of Dallas County, Dallas, TX, for Defendant Michael Scarpello.

Cory A. Scanlon, Kathleen Hunker, Michael Abrams, Johnathan Stone, Office of the Attorney General of Texas, Austin, TX, for Intervenor Defendant Ken Paxton.

Chad Ennis, Texas Secretary of State, Austin, TX, Chance D. Weldon, Munera Al-Fuhaid, Robert E. Henneke, Autumn Hamit Patterson, Texas Public Policy Foundation, Austin, TX, for Intervenor Defendants Lupe C. Torres, Terrie Pendley.

MEMORANDUM OPINION AND ORDER

JASON PULLIAM, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff Vote.org's Motion for Summary Judgment and Defendants’ and Intervenor Defendants’ (collectively referred to as "Texas" because these parties are all representatives of the state) Motions for Summary Judgment, and the responsive filings. ECF Nos. 108, 109, 111, 120, 121, 122, 124, 128, 132, 134. Upon consideration, the Court concludes Vote.org has standing to assert the causes of action raised and to bring this action. The Court concludes Texas's Motions for Summary Judgement (ECF Nos. 108, 109) are DENIED. Vote.org's Motion for Summary Judgment (ECF No. 111) is GRANTED. Vote.org's request for permanent injunction is GRANTED, and Vote.org's request for declaratory relief is GRANTED IN PART.

The Court declares the provision contained in Texas Election Code § 13.143(d-2) that requires "a copy of the original registration application containing the voter's original signature must be submitted by personal delivery or mail" violates Section 1971 of the Civil Rights Act and violates the First and Fourteenth Amendments of the U.S. Constitution by placing an undue burden on Texas citizens’ right to vote. Vote.org's request for declaratory relief that "any other provision which requires a voter to sign an application form with an original, wet signature in order to register to vote" violates the Civil Rights Act and the First and Fourteenth Amendment is denied.

UNDISPUTED FACTUAL BACKGROUND

The facts underlying this action are primarily undisputed. Vote.org is a nonprofit, nonpartisan organization. Vote.org's mission and outreach activities include: (1) use technology to simplify political engagement, increase voter turnout, and strengthen American democracy; (2) work to support low-propensity voters, including racial and ethnic minorities and younger voters who tend to have lower voter-turnout rates; and (3) help Texans register to vote and verify registration status. The named Defendants serve as voter registrars and oversee voter registration activities in Texas.

To assist voters in completing voter registration applications, Vote.org developed and launched an application ("web app") accessed by computer or smartphone. By accessing Vote.org's web app, a prospective voter registrant can submit their required information through prompts. This information is then auto-populated into an electronic version of the federal voter registration form. The prospective voter registrant then signs a piece of paper, takes a picture of the signature, and uploads that picture to the web app. The web app affixes the signature to the populated electronic voter registration form and sends this form to a third-party vendor. The third-party vendor then "faxes" the voter registration form to the registrant's appropriate county registrar.¹

In October 2018, Secretary of State Pablo independently questioned the validity of the voter registration forms submitted by telephonic facsimile using Vote.org's web app on the basis the registration forms were not "signed by the applicant" as required by the Texas Elections Code because the submissions contained a graphic image, or "electronic" signature, not an original, "wet signature." Thus, Secretary Pablo deemed the voter registration forms incomplete because they lacked original, wet signatures. Upon Secretary Pablo's instruction, Texas Elections Administrators rejected all voter registration forms submitted that included only an electronic signature, effectively ending Vote.org's use of the web app.

Thereafter, Section 14 of House Bill 3107 (HB 3107) was codified during the 2021 legislative session. HB 3107 § 14, 87th Leg., Reg. Sess. (Tex. 2021). HB 3107 amended Texas Election Code Section 13.143, among others, by adding the original, "wet signature" requirement to Section 13.143(d-2), which states, as amended, "[f]or 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) (2021)("the Wet Signature Rule")(emphasis added to designate amendment).² Upon receipt of the printed, signed copy, the previous telephonic-facsimile submission is deemed "complete," with no further discretionary review. Id. If the printed version with the wet signature is not received within four business days, the telephonic-facsimile submission is deemed incomplete and rejected. If a voter registration form is rejected for any reason, the registrar or Elections Administrator must send a notice of incomplete-ness to the registrant and permit the registrant to resubmit another voter registration form curing the deficiencies. Tex. Elec. Code Ann. § 13.073 (2003).

Vote.org brought this action on July 8, 2021. In its Complaint seeking declaratory and injunctive relief, Vote.org specifically challenges § 13.143(d-2) of the Texas Election Code (the Wet Signature Rule).³ Vote.org alleges the addition of the Wet Signature Rule unlawfully targets and burdens its efforts to increase voter turnout by imposing an arbitrary barrier to registration that denies citizens the opportunity to vote for reasons entirely unrelated to their eligibility to vote. On this basis, Vote.org asserts two causes of action. First, Vote.org alleges the Wet Signature Rule violates § 1971 of the Civil Rights Act of 1964, codified at 52 U.S.C. § 10101(a)(2) (for clarity, this specific provision will be referred to simply as "the Civil Rights Act"). Second, Vote.org alleges the Wet Signature Rule violates the First and Fourteenth Amendments of the U.S. Constitution by placing an undue burden on citizens’ right to vote. Vote.org asserts its causes of action under 42 U.S.C. § 1983.⁴ Vote.org requests preliminary and permanent injunction enjoining enforcement of the Wet Signature Rule and requests this Court declare "the Wet Signature Rule ... and any other provision requiring a voter to sign an application form with an original, wet signature in order to register to vote violates ... the Civil Rights Acts and violates the First and Fourteenth Amendments of the U.S. Constitution."

Ken Paxton, in his official capacity as the Attorney General of Texas, intervened in the suit and now acts as the lead party in asserting the Defendants’ and Intervenors’ position. The matter is now before the Court upon the parties’ competing Motions for Summary Judgment. This Court held a status conference on May 18, 2022, during which the Court accepted limited argument on some of the issues presented. At the hearing, both parties agreed no additional hearing or argument is necessary, and the Court can decide and dispose of this matter upon submission of the summary-judgment briefs. The Court provided another opportunity for hearing, and the parties did not request further hearing. ECF No. 141. Consequently, the Court will only examine the request for permanent injunctive relief upon submission of the summary judgment briefs.

DISCUSSION

I. STANDING

Texas first asserts this Court does not have subject matter jurisdiction over Vote.org's causes of action because Vote.org lacks standing, as it has no concrete injury, and Texas does not cause Vote.org's alleged injury. ECF No. 108, pp. 8-16, 24-25; ECF No. 109, pp. 2-8, 11-13. Further, Texas argues Vote.org has no private cause of action under the Civil Rights Act because the statute only authorizes the Attorney General to bring suit. Finally, Texas argues Vote.org lacks statutory standing to sue on behalf of voters under § 1983....