Voting for Am., Inc. v. Andrade

• Decision Date: 02 August 2012
• Docket Number: Civil Action No. G–12–44.
• Citation: 888 F.Supp.2d 816
• Parties: VOTING FOR AMERICA, INC., et al, Plaintiffs, v. Hope ANDRADE, et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

888 F.Supp.2d 816

VOTING FOR AMERICA, INC., et al, Plaintiffs,

v.Hope ANDRADE, et al, Defendants.

Civil Action No. G–12–44.

United States District Court,

S.D. Texas,

Galveston Division.

Aug. 2, 2012.

Validity Called into Doubt

V.T.C.A., Election Code §§ 11.002(a)(5), 13.008(a)(2, 3), 13.031(d)(3), 13.038, 13.042, 13.043(a)Brian Mellor, Michelle Kanter Cohen, Michelle Rupp, Project Vote, David C. Peet, Julia Lewis, Ryan Morland Malone, Washington, DC, Chad W. Dunn, Brazil & Dunn, Houston, TX, for Plaintiffs.

Kathlyn Claire Wilson, Drew L. Harris, Office of the Attorney General, Austin, TX, Donald S. Glywasky, Galveston, TX, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

GREGG COSTA, District Judge.

Broad-based participation in the political process is crucial to governmental legitimacy and the proper functioning of our constitutional system. SeeThe Federalist No. 10 (James Madison); see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (“Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.”). The most elementary form of political participation is voting; thus, the right to vote is “a fundamental matter in a free and democratic society.” Reynolds v. Sims, 377 U.S. 533, 561–62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). But, in order to vote, one must first be registered, and many citizens are not registered.

This problem has been tackled on many fronts; governmental actors and private citizens alike have spent much time and treasure attempting to increase the number of Americans who are registered to vote. One of the primary means by which individuals have been able to help their fellow Americans register is what is commonly known as the voter registration drive. Voter registration drives have played a vital role in increasing participation in the political process. This is especially true in minority communities with historically lower rates of voter registration. Census figures indicate that a significant percentage of African–Americans and Hispanics voting in the last presidential election registered through voter registration drives and other third-party voter registration activities.¹

This case concerns Texas's heavy regulation of third-party voter registration activity. For more than two decades, Texas has required those seeking to receive applications from prospective voters to be appointed volunteer deputy registrars (‘VDRs'). During the 2011 legislative session, the Governor signed two bills that imposed a number of additional requirements. The new laws restricted non-Texans from becoming VDRs, required VDRs to undergo training, and banned certain forms of compensation for voter registration activities. The result is that Texas now imposes more burdensome regulations on those engaging in third-party voter registration than the vast majority of, if not all, other states.

Two organizations involved in national voter registration efforts filed this lawsuit and now seek a preliminary injunction barring enforcement of a number of the Texas laws regulating voter registration drives. They contend that the federal National Voter Registration Act (“NVRA”) preempts some of the laws. Others, they maintain, violate the First Amendment guarantees of freedom of speech and association and the Fourteenth Amendment guarantee of due process.

In reviewing these challenges, the Court first holds that Plaintiffs have standing to bring the eight claims on which they requested preliminary relief against both named defendants—the Texas Secretary of State and the Galveston County Registrar. Then, having reviewed the applicable statutes and case law, as well as the briefing and the evidence presented at a lengthy injunction hearing, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion for Preliminary Injunction. Plaintiffs have met the demanding standards for a preliminary injunction on five of the eight challenges on which they seek preliminary relief. They are entitled to a preliminary injunction on two of their preemption challenges, those brought against the Photocopying Prohibition and the Personal Delivery Requirement, and on three of their First Amendment challenges, those brought against the In–State Restriction, the County Limitation, and part of the Compensation Prohibition.

I. Background

A. Procedural History

Plaintiffs are the nonprofit organization Project Vote, its affiliate, Voting for America (together, the “Organizational Plaintiffs”), and Galveston County residents Brad Richey and Penelope McFadden. In May 2011, after the enactment of the new laws regulating voter registration drives, the Organizational Plaintiffs sent a letter requesting the Secretary of State to clarify Texas's interpretation of both the new laws and the preexisting scheme. After receiving a response, Plaintiffs filed suit in February 2012 challenging (1) the constitutionality and enforceability of ten regulations that the Texas Election Code imposes on the third-party voter registration process; (2) Galveston County's alleged unlawful enforcement of Texas's photo identification requirement for voters prior to the proper preclearance of that law under the Voting Rights Act; and (3) Galveston County's alleged failure to follow state law requiring notice to voters before suspending their registration. Defendants are Hope Andrade, sued in her official capacity as the Texas Secretary of State (the “Secretary”), and Cheryl Johnson, sued in her official capacity as the Galveston County Tax Assessor and Voter Registrar.

The Organizational Plaintiffs filed a motion for a preliminary injunction seeking to immediately bar enforcement of most, but not all, of the Texas voter registration laws they contend are either unconstitutional or preempted. They did not seek preliminary relief on the claims in their complaint that are specific to Galveston County enforcement practices. In addition to disputing the merits of the case, both Andrade and Johnson contend that the Organizational Plaintiffs lack standing to sue them.

B. The Organizational Plaintiffs

The Organizational Plaintiffs are national nonpartisan organizations dedicated to helping citizens become registered to vote and to encouraging eligible voters to vote. The Organizational Plaintiffs work to accomplish their mission through nonpartisan political advocacy, educational outreach, and, most notably, voter registration drives. The drives are primarily aimed at registering voters from demographic groups—particularly the African—American and Latino communities—with a history of underrepresentation in the political process.

While the Organizational Plaintiffs sometimes conduct drives by themselves, more often they provide funding, instruction, and training to “partner” organizations, typically local nonprofit or civic groups selected from the geographic area or demographic group targeted for a drive. The same basic methods are followed in each drive. The Organizational Plaintiffs will provide funding to a local partner organization. Then, using that funding, the partner organization will hire temporary employees from the target community to serve as canvassers. These canvassers are paid a flat or hourly wage to go to high traffic locations, such as grocery stores and public transit stations, and attempt to register other citizens to vote. The canvassers encourage passersby to register, assist those who agree to register in filling out their applications, and collect the applications for delivery. Once the applications are collected, the canvassers return them to their supervisors. The supervisors then perform quality analysis and control checks by reviewing the applications for completeness and signs of fraud. Afterwards, they photocopy or scan all nonconfidential parts of the applications for tracking purposes and mail the applications to the appropriate state or county registrar.

After submitting the applications, the partner organizations coordinate with the Organizational Plaintiffs to inspect the relevant voter rolls and registration records. They do this by examining the rolls to determine whether the applicants were actually registered as new voters. Once this information is gathered, it is used in two ways. First, the applicants who were added to the rolls are contacted and encouraged to actually vote. Second, for those applicants who were not added to the rolls, the Organizational Plaintiffs and their partners seek to determine if the applications were rejected for a legitimate reason, such as a correct determination that an applicant was not eligible to register under state law or that an applicant provided incorrect information. Rejected applicants may be contacted to re-register if it is determined that they are eligible. If the Organizational Plaintiffs determine that the government has rejected an application for an improper reason, they may seek to remedy the situation through demand requests, public pressure, or legal action.

Although the Organizational Plaintiffs rarely canvass potential voters themselves, they have primary control over each registration drive. As the executive director of Project Vote testified, the Organizational Plaintiffs' employees often train the managers and supervisors of their partner organizations by helping them assist applicantsin the field, a process that requires the employees to directly handle voter registration applications. See Preliminary Inj. Hr'g Tr. 23–24, June 11, 2012, ECF No. 62. The Organizational Plaintiffs' employees identify areas to send canvassers, provide remedial training to canvassers who collect inadequate numbers of applications or who collect incomplete applications, review completed applications for signs of fraud, and handle phone calls from members of the...