Voting for America, Inc. v. Hope Andrade

Case: 12-40914 Document: 00511999669 Page: 1 Date Filed: 09/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 26, 2012
No. 12-40914 Lyle W. Cayce
Clerk
VOTING FOR AMERICA, INC.; BRAD RICHEY; PENELOPE MCFADDEN;
PROJECT VOTE, INC.,
Plaintiffs - Appellees
v.
HOPE ANDRADE,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
U.S. Dist. Ct. No. 3:12-CV-00044
Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
On September 6, 2012, we entered an order granting Appellant Texas
Secretary of State Hope Andrade’s1 Emergency Motion to Stay the district court’s
Order (as modified) granting in part a preliminary injunction against the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Although Cheryl Johnson, Galveston County Assessor was also sued in the district
court, she did not file a notice of appeal.
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enforcement of certain Texas statutes and stating that reasons would be
assigned later. Those reasons follow.
I. Background of Election Code Chapter 13
Like other states, Texas has a system by which citizens desiring to vote in
elections must register with the state. See generally TEX. ELEC. CODE § 11.001
et seq. “To encourage voter registration,” Texas has instituted a system whereby
volunteers can be appointed as “volunteer deputy registrars” (VDRs) empowered
to accept voters’ applications to be registered. TEX. ELEC. CODE § 13.031 et seq.
(hereinafter the “VDR Law”). This basic structure has existed for over twenty
years in Texas, with little incident and almost no reported cases. However, in
2011, the Texas legislature amended the VDR Law to add certain requirements,
including training of VDRs. TEX. ELEC. CODE § 13.047.
Appellant Hope Andrade is the Texas Secretary of State; in that capacity,
she is charged with administering Texas’s election laws.2 Appellees Voting for
America, Inc., Project Vote, Inc., Brad Richey, and Penelope McFadden
(“Appellees”) state in their complaint that Richey and McFadden are individuals
who have had difficulty both registering to vote in Texas and becoming VDRs;
the two organizations have as their mission working to ensure that all eligible
citizens register to vote. In response to the 2011 amendments of the Texas
Election Code, Appellees contend that they made inquiries of Andrade regarding
the meaning of certain provisions in the VDR Law. Unsatisfied with her
response, they filed this lawsuit seeking a preliminary and permanent injunction
against many of the provisions of the VDR Law, both old and new. After briefing
2
At this point, Andrade has not reasserted the standing issues she raised in the
district court. Because standing is a component of federal subject-matter jurisdiction, we must
examine it on our own. Sommers Drug Stores Co. Emp. Profit Sharing Trust v. Corrigan, 883
F.2d 345, 348 (5th Cir. 1989). We conclude that the district court’s analysis of standing is
substantially correct, Appellees have standing to bring this case, and Andrade is at least a
proper party to respond to it. See Voting for Am., Inc. v. Andrade, No. 3:12-CV-00044, 2012 WL
3155566, at *9–13 (S.D. Tex. Aug. 2, 2012).
2
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and an oral hearing at which testimonial and other evidence was presented, the
district court entered an Order Granting in Part and Denying in Part Plaintiffs’
Motion for a Preliminary Injunction. The court then modified this order twelve
days later and denied Andrade’s motion for a stay pending appeal. See Voting
for Am., Inc. v. Andrade, No. 3:12-CV-00044, Order Den. Mot. for Stay (S. D. Tex.
Aug. 14, 2012). Andrade appealed both orders to this court and, in the interim,
sought a stay of the district court’s order which, in turn, enjoins enforcement of
certain portions of the VDR Law. We examine the order as modified as one
unitary document.
Pertinent to this appeal, the district court enjoined enforcement of the
following portions of the VDR Law:3
(1) that portion of Texas Election Code § 13.038 that prohibits VDRs from
photocopying or other duplicating of voter registration applications submitted
to the VDR but not yet forwarded to the county registrar (so long as no
information deemed confidential under § 13.004 is included)(the “Photocopying
Provision”)4;
(2) that portion of Texas Election Code § 13.042 that prohibits VDRs from
sending in applications by United States mail (the “Personal Delivery
Provision”);
3
For purposes of assessing this motion to stay, we examine only the preliminary
injunction as modified on August 14, 2012. We note that Appellees challenge additional
portions of the VDR Law, but we examine only those as to which enforcement was enjoined
by the district court’s order and as to which the current stay request pertains.
4
Section 13.038 states: “A [VDR] may distribute voter registration application forms
throughout the county and receive registration applications submitted to the deputy in
person.” Although this provision says nothing about photocopying, Appellees contend, and
Andrade does not dispute, that Andrade has taken the position that VDRs are prohibited from
photocopying forms they receive and, instead, are limited to transmitting such forms to the
appropriate county official.
3
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(3) that portion of Texas Election Code § 13.031(d)(3) to the extent it
forbids non-Texas residents from serving as VDRs (the “Non-Resident
Provision”);
(4) that portion of Texas Election Code § 13.038 that prohibits VDRs
appointed in one county from serving in another county (the “County
Provision”)5; and
(5) Texas Election Code § 13.008(a)(2) & (3) (the “Compensation
Provision”).
The task before this court is only to decide the emergency motion to stay,
which we decided on an abbreviated briefing schedule and within a limited time
(although we did hear oral argument, conducted on shortened notice). The
question we address, then, is whether, while the appeal is pending, Texas can
enforce the entirety of the VDR Law or whether it is proscribed from enforcing
the sections outlined in the district court’s injunction. We disclaim any intent
to bind a subsequent merits panel.
It sometimes takes time to decide a question, but, meanwhile, time itself
does not “stand still.” Nken v. Holder, 556 U.S. 418, 421 (2009). “A stay does
not make time stand still, but does hold a ruling in abeyance to allow an
appellate court the time necessary to review it.” Id. Before addressing the
merits of the stay motion, we must first examine the applicable standards.
5
Section 13.038, quoted in footnote 4, supra, does not have an express “county-by-
county” limitation. Once again, however, the parties seemingly agree that Andrade construes
the appointment of a VDR to be limited to the county in which the appointment is made. We
note that this interpretation is supported by the language of Section 13.033 which contains the
precise wording of the appointment document, including a statement that the county registrar
“do[es] hereby appoint ___ as a [VDR] for _____ County,” suggesting that the powers granted
by appointment are limited to that county alone. TEX. ELEC. CODE § 13.033. This section has
been the law for over twenty years, yet it has sparked no reported decision.
4
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II. Standards For Granting a Stay
The standards for granting a stay pending appeal are well-established: “(1)
whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.”
Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Nken, 556 U.S. at 426.
Such a stay is a matter of judicial discretion, not a matter of right.6 Nken, 556
U.S. at 433. The factors to be considered in deciding whether to stay an order
pending appeal are virtually the same as the factors used by a court in deciding
whether to issue a preliminary injunction.7 Thus, we have here the somewhat
circular situation of deciding whether there is irreparable harm to Andrade in
part by analyzing the likelihood of success on the merits by Appellees of showing
irreparable harm to them.8 This analysis plays out against a backdrop of
impending November 6, 2012, elections for which the voter registration deadline
in Texas is October 9, 2012.
6
The district court’s denial of a stay of judgment pending appeal is generally reviewed
for abuse of discretion. See Beverly v. United States, 2d 732, 741 n.13 (5th Cir. 1972). This is
an appellate standard of review, rather than an independent application of the factors relevant
to a motion for a stay, as is presented here. Nonetheless, “a district court necessarily abuses
its discretion if its conclusion is based on an erroneous determination of the law.” Af-Cap, Inc.
v. Republic of Congo, 462 F.3d 417, 425 (5th Cir. 2006).
7
In granting a temporary injunction, the district court must weigh four factors: “(1)
a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury
if the injunction is not issued, (3) that the threatened injury if the injunction is denied
outweighs any harm that will result if the injunction is granted, and (4) that the grant of an
inunction will not disserve the public interest.” See, e.g., Janvey v. Alguire, 647 F.3d 585, 595
(5th Cir. 2011).
8
The dissenting opinion takes issue with this statement but, unquestionably, in the
ultimate appellate review of the district court’s decision, our court will have to examine
whether Appellees met their burden to show irreparable harm in order to sustain the
preliminary injunction. Whether Andrade is likely to succeed in showing that Appellees did
not meet that burden is one question before us in the context of this emergency stay motion.
5
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In this case, both sides cloak themselves in the mantle of irreparable harm
– Andrade, because all the ills that gave rise to the need for the VDR Law can
occur in connection with voter registration for the upcoming election, while
Appellees counter that they will be prevented from fully implementing their
large-scale voter registration drive efforts in connection with the same election.
In one corner, Appellees valiantly champion the need to both encourage and
facilitate citizens in registering to vote, a noble tradition in our country. In the
other corner, Andrade agrees with this need, but is concerned about protecting
the integrity of the registration process from harms of fraud or error, and from
people who might seek to disenfranchise those with whom they disagree. Both
sides claim the public interest supports them and that their prospective harm
is greater than the harm to the other. While this panel rules only on the
immediate motion to stay the district court’s injunctive order pending appeal,
the analysis under these circumstances centers on the likelihood of success on
the merits. We turn to that question first.
III. Discussion
A. Standards Applicable to the Merits
The Supreme Court has expressly countenanced “substantial regulation
of elections” to avoid “chaos,” even as it has protected important rights, such as
petitioning the government. Buckley v. Am. Constitutional Law Found., 525
U.S. 182, 186 (1999)(internal citation and quotation marks omitted). Thus, a
state has a substantial interest in protecting the sanctity of the voting process
through regulation, even as it provides for the basic constitutional protections
afforded to the political process.
Appellees made two basic challenges to the various sections of the VDR
Law: violations of the First Amendment of the United States Constitution and
violations of the National Voter Registration Act (“NVRA”), 42 U.S.C. §§ 1973gg
et seq. Specifically, they contend that their right to engage in voter registration
6
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activities is “expressive” in nature, such that limitations upon it abridge
Appellees’ First Amendment rights. Relevant to this motion to stay and the
underlying appeal, the district court grounded its preliminary injunction against
enforcement of the Non-Resident, County, and Compensation Provisions in First
Amendment jurisprudence. It based the injunction against the Personal
Delivery Provision and the Photocopying Provision upon the premise that they
violate the NVRA. We examine each in turn.
Turning to the constitutional analysis, while not a model of clarity, it
appears that Appellees make a facial challenge to the particular provisions, a
very high hurdle.9 See, e.g., United States v. Robinson, 367 F.3d 278, 290 (5th
Cir. 2004) (“A facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set
of circumstances exists under which the Act would be valid.” (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)). They cite to no application or
threatened enforcement of any provision relevant only to the Appellees, or
causing substantial detriment particular to their specific interests.10 Instead,
they broadly challenge the relevant provisions as unconstitutional.
9
At oral argument Appellees conceded that the challenge to the statute was facial,
likely because there are insufficient factual allegations in the record to establish the Appellees’
individual harm for an as-applied challenge. The dissenting opinion suggests that it does not
matter whether the challenge is facial or “as-applied.” It matters a great deal here because
the district court – rather than attempting to construe statutes so as to make them lawful –
accepted hypothetical scenarios Appellees posited to enjoin these laws. In an “as-applied”
challenge, Appellees could point to some specific situation the district court, and this court in
review, could examine. Very little in the way of hard facts – rather than rumor and vague
“fears” was actually presented to the district court. Appellees’ concession thus makes sense.
10
Appellees’ witness Michael Slater testified that he was not aware of any prosecutions
of voter registration drive participants in Texas. Indeed, he testified that his organization
conducted a successful large-scale voter registration drive in Harris County, Texas, in 2008
and that the impact of the amendments to the VDR law were “unknown.” Testimony of
Appellees’ witness Estelle Holmes, a VDR in Galveston County, indicated that she was not
aware of any instance where the laws have created concrete problems preventing third-party
voter registration.
7
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Our task as a federal court is, to the extent possible, to construe the
provisions to avoid a constitutional conflict. See, e.g., Ohio v. Akron Ctr. for
Reprod. Health, 497 U.S. 502, 514 (1990). A federal court should not lightly
enjoin the enforcement of a state statute. Chisom v. Roemer, 853 F.2d 1186,
1189 (5th Cir. 1988). The determination of whether a democratically enacted
statute is constitutional on its face requires that “every reasonable construction
must be resorted to [ ] in order to save a statute from unconstitutionality.”
National Federation of Independent Business v. Sebelius, — U.S. —, 132 S.Ct.
2566, 2594 (2012). In this vein, Andrade’s interpretation must be accorded some
meaningful weight, as she is the official charged with enforcing the statute. See
Bellotti v. Baird, 428 U.S. 132, 143 (1976). We defer to her interpretation of how
the law is to be enforced, so long as it does not conflict with the statutory text.
See Hamer v. Musselwhite, 376 F.2d 479, 481 (5th Cir. 1967) (deferring to the
city’s interpretation of an ordinance because city officials are charged with
enforcing the statute and are the ones who must apply it).
Most constitutional analyses of a statute begin with an examination of the
degree of scrutiny a statute will receive. Cf. District of Columbia v. Heller, 554
U.S. 570, 634 (2008) (describing three “traditionally expressed levels” of scrutiny:
“strict scrutiny, intermediate scrutiny, [and] rational basis”). Strict scrutiny,
the most severe test, is applied to “core political speech,” described as
“interactive communication concerning political change.” Meyer v. Grant, 486
U.S. 414, 422 (1988). Importantly, simply labeling a challenge as one under
constitutional guarantee such as free speech does not make strict scrutiny
applicable. See, e.g., United States v. Marzzarella, 614 F.3d 85, 96-97 (3d Cir.
2010) (“[T]he right to free speech, an undeniably enumerated fundamental right,
is susceptible to several standards of scrutiny, depending upon the type of law
challenged and the type of speech at issue.” (internal citations omitted)). The
8
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district court appeared to apply “intermediate scrutiny,”11 reasoning that all
aspects of the voter registration process are “expressive” in nature, thus
implicating First Amendment rights and requiring (at least) intermediate
scrutiny under Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). See Andrade,
2012 WL 3155566, at *19–23. Under this test, state election codes regulating
voter registration may burden an individual’s right to vote and to political
association, but only to the extent justified by the State’s legitimate goals.
Anderson, 460 U.S. at 788; see also R.A.V. v. St. Paul, 505 U.S. 377, 429 (1992)
(“[T]he government generally has a freer hand in restricting expressive conduct
than it has in restricting the written or spoken word.” (quoting Texas v. Johnson,
491 U.S. 397, 406 (1989)). Alternatively, if the conduct is found to be non-
expressive and therefore unprotected, the statute will be scrutinized for its
“rational basis.” See Heller, 554 U.S. at 628 n. 27 (if the law does not implicate
a specific constitutional rights, such as freedom of speech, then rational basis
review applies).
In examining the claimed violations of the NVRA, we must analyze
whether the challenged provisions of the VDR Law conflict with the federal
statute such that the NVRA preempts the contrary state provision. Though
states generally bear responsibility for the mechanics of congressional elections,
Congress may act to preempt state legislative choices. See Foster v. Love, 522
U.S. 67, 69 (1997). Much like traditional Supremacy Clause preemption,
conflicts with federal election regulations render state law inoperative. See Ex
parte Siebold, 100 U.S. 371, 384 (1879). To this end, state laws cannot “directly
11
We have defined “intermediate scrutiny” in the First Amendment arena as follows:
“[W]e . . . sustain the provisions [under intermediate scrutiny] if they further an important or
substantial governmental interest; if the governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest.” Time Warner Cable, Inc. v.
Hudson, 667 F.3d 630, 641 (5th Cir. 2012) (internal citation and quotation marks omitted).
9
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conflict” with federal election laws on the subject. Voting Integrity Project, Inc.
v. Bomer, 199 F.3d 773, 775 (5th Cir. 2000). However, when confronted with two
possible interpretations of state law, the court has “a duty to accept the reading
that disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449
(2005).
B. Likelihood of Success on the Merits
1. County and Non-Resident Provisions
We conclude that Andrade has presented a strong likelihood of success on
the merits in that the district court incorrectly applied these standards in the
order it issued. We turn first to the County Provision and the Non-Resident
Provision, both of which, as pertinent here, apply only to the question of who
may be appointed as a VDR and empowered to physically receive a completed
voter registration application from a potential voter and transmit it to the proper
county official.
The First Amendment protects political expression manifested through
conduct, as well as speech. See Johnson, 491 U.S. at 406 (holding that the
burning of an American flag is conduct “sufficiently imbued with elements of
communication to implicate the First Amendment” (internal citation and
quotation marks omitted)). To determine whether particular conduct possesses
sufficient “communicative elements” to fall under the First Amendment, courts
look to whether there was “[a]n intent to convey a particularized message” and
whether “the likelihood was great that the message would be understood by
those who viewed it.” Id. at 404 (internal citations omitted).
All parties agree that the primary act of simply encouraging citizens to
vote constitutes core speech and would be protected under the First Amendment.
State restrictions on this activity would be analyzed under the lens of strict
scrutiny, under which the state would have to advance a compelling justification
for its regulation. Concomitantly, we have recognized that states have a
10
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compelling interest in protecting citizen’s rights to vote. Schirmer v. Edwards,
2 F.3d 117, 121 (5th Cir. 1993)(upholding limits on electioneering within a
certain distance from a polling place). No one contends that Appellees have been
prevented from actually speaking to anyone about voting; at best, they have
made an argument that their “expressive conduct” is being restricted.
Importantly here, Andrade has repeatedly asserted that she does not and will
not seek to enforce the VDR Law to prevent any individual or organization from
freely handing out voter registration applications and encouraging citizens to
vote. The district court accepted these representations for purposes of its
analysis, so we do as well. Thus, the focus of the VDR Law as enjoined by the
district court is not on whether a party may encourage another to register to
vote, but whether a private party can actually receive the prospective voter’s
completed registration application and handle it in some way. In essence, they
contend a First Amendment right not just to speak out or engage in “expressive
conduct” but also to succeed in their ultimate goal regardless of any other
considerations.12
12
Here, that ultimate goal is a laudatory one of having citizens vote. But First
Amendment protections exist not just for speech that may be noble but also for speech that is
not. The Court’s discussion in Meyer, 486 U.S. at 421, of the rights of parties to “select what
they believe to be the most effective means” to advocate a cause cannot be seen as embracing
an “anything goes” philosophy for any conduct that may relate in any way to speech or
expression. Moreover, the argument that Appellees’ expressive activity, here the promotion
of voter registration, is contingent on the “success” factor of actually registering voters is a
novel interpretation of First Amendment doctrine. While the First Amendment protects the
right to have and express political views, nowhere does it protect the right to ensure those
views come to fruition. In this context of voter registration, a goal all parties here support,
expansive protection would appear harmless. However, applied in other contexts, where the
underlying speech is less universally accepted, the effects of such a rule prove otherwise.
Imagine for example, the opposite situation, where an organization’s goals are to discourage
voting and voter registration. Again, the First Amendment protects the expression of such
views. But freedom of expression cannot be used to protect that group’s “right” to successfully
achieve its expressive goals of preventing others from voting by throwing the registration
cards away.
Appellees also rely on Meyer (and the later Supreme Court case of Buckley) to urge that
the VDR Law has “the inevitable effect of reducing the total quantum of speech,” limiting “the
11
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Appellees contend, and the district court accepted, that all aspects of a
voter registration drive are “expressive conduct” protected by the First
Amendment.13 We perceive a significant distinction between voter registration
activity that urges citizens to vote (constituting protected expressive conduct,
allowed without regulation by the VDR Law as considered by the district court),
and the activity of collecting completed applications and submitting them to the
government on behalf of voters (non-expressive conduct, permissibly regulated
by the VDR provisions). Because different legal principles apply to these two
discrete actions, it is important to assess regulations on each separately. See
Planned Parenthood v. Suehs, – F.3d –, 2012 WL 3573642, at *4 (5th Cir. 2012)
(reviewing a temporary injunction that impermissibly grouped state regulations
on promotion of abortion with the right to affiliate with other pro-choice
supporters).
number of voices who will convey [Plaintiffs’] message and the hours they can speak and,
therefore, limit[ing] the size of the audience they can reach.” 486 U.S. at 422. This argument
simply does not apply. No party argues that the law prevents anyone, regardless of domicile
or VDR appointment, from passing out registration forms and encouraging others to vote. The
size of the audience remains the same, and the “total quantum of speech” is unaffected. While
affirming the striking down of some provisions of Colorado law in Buckley, the Court
recognized an “important interest” of the state in protecting the integrity of the ballot
initiative process there at issue and in deterring fraud. 525 U.S. at 204-05. Citizens United
v. Federal Election Commission, 130 S. Ct. 876 (2010), discussed by the dissenting opinion
here, addressed a ban on political speech based upon the identity of the speaker as a
corporation; that issue is not before us.
13
At oral argument, Appellees urged the court to draw a close parallel to the Supreme
Court’s reasoning in Meyer, 486 U.S. at 422, finding that the circulation of initiative petitions
was a matter involving the core political speech rights of the circulators under the First
Amendment. The analogy is improper. The circulation and submission of an initiative
petition is closely intertwined with the underlying political ideas put forth by the petition. The
petition itself is the protected speech. Moreover, the very nature of a petition process requires
association between the third-party circulator and the individuals agreeing to sign. In the
voter registration context, the underlying expressive conduct (encouraging democratic
participation and voting) does not implicate a third-party’s right to process the application.
Voter registration applications are individual, not associational, and may be successfully
submitted without the aid of another. Here, the actual expression is not being limited.
12
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We conclude there is nothing “inherently expressive” about receiving a
person’s completed application and being charged with getting that application
to the proper place.14 See Rumsfeld v. Forum for Academic & Instituitonal
Rights, Inc., 547 U.S. 47, 66 (2006) (“[W]e have extended First Amendment
protection only to conduct that is inherently expressive.”). No circuit court has
held that the actual receipt and delivery process is, itself, entitled to First
Amendment protection.15 District courts that have held as the district court did
here fail to apply the discerning regulation-by-regulation analysis we most
recently employed in Suehs. See League of Women Voters v. Cobb, 447 F. Supp.
2d 1314, 1322 (S.D. Fla. 2006) (finding certain requirements imposed on third-
parties who collect registration forms unconstitutional as “reducing the quantum
of political speech”16); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 699 (N.D.
14
Appellees do not contend that they should be free to receive a completed application
from a prospective voter and throw it in the trash. Implicitly, if not explicitly, they concede
the importance of making sure this process is handled carefully and without fraud or
malfeasance.
15
The Eleventh Circuit affirmed a district court’s preliminary injunction enjoining a
Georgia voter registration statute, which rejected voter registration forms submitted to the
state in a single mailed package. Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d
1349 (11th Cir. 2005) (finding the “associational and franchise-related rights asserted . . . were
threatened with significant, irreparable harm . . . without question in the public interest.”)
However, this case is easily distinguishable because in applying its “anti-bundling” provision,
Georgia refused to accept the wrongfully submitted applications, thus impermissibly depriving
the applying voters of franchise. The Texas code only operates to penalize VDRs who do not
submit applications according to statute, while still accepting a voter’s timely application in
compliance with the NVRA. Moreover, although the petitioners in Cox alleged First
Amendment violations, neither the district court nor the 11th Circuit addressed any
constitutional rights concerning the receipt and submission of voter registration applications.
16
One key difference between the Florida statute at issue in Cobb and the Texas VDR
Law is that the Florida statute discriminated against non-political party organizations. Cobb,
447 F. Supp. 2d at 1335. An appeal of the district court’s decision was dismissed as moot after
Florida substantially amended its statute. League of Women Voters of Fla. v. Browning, 2008
U.S. Dist. LEXIS 108147, at *5 n.3 (S.D. Fla. 2008). Thereafter, that district court declined
to enjoin enforcement of the amended law. League of Women Voters of Fla. v. Browning, 575
F. Supp. 2d 1298, 1325 (S.D. Fla. 2008). Several years later, a different district court in
Florida preliminarily enjoined enforcement of a still further amended statute that contained
13
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Ohio 2006) (applying intermediate scrutiny to all aspects of third-party
registration laws); see also American Association of People with Disabilities v.
Herrera, 690 F. Supp. 2d 1183, 1200 (D.N.M. 2010) (finding that the plaintiff’s
generalized third party voter registration activity implicated expressive conduct
because it was intended to “convey a message that voting is important”). The
courts broadly considered voter registration activities as protected activity
generally, instead of drawing distinctions between the type of conduct and type
of regulation at issue. Thus, we find their analyses unpersuasive.
Because we conclude that the physical receipt and delivery of completed
voter registration applications are not “expressive conduct” as separately
analyzed and are not “part and parcel” of the expressive conduct, we employ
rational basis scrutiny to the County and Non-Resident Provisions. With respect
to the Non-Resident Provision and the County Provision, Andrade justifies these
requirements on the theory that local control over people entrusted with these
applications is an important and necessary safeguard in preventing fraud and
improper handling of such applications. While we cast no aspersions on the
parties before us, we recognize that without some regulation, out-of-state
individuals could descend upon Texas before the voter registration deadline,
engage in unlawful and fraudulent registration practices, and then leave the
state before action could be taken against them. Importantly, Appellees’ own
witness (Executive Director of Project Vote, Michael Slater) eschewed any desire
to have the voter registration drives run entirely by those from out-of-state,
a “48-hour” requirement for turning in applications and which the court construed as a
prohibition of use of the mails. League of Women Voters of Fla. v. Browning, – F. Supp. 2d –,
No. 11-628, 2012 WL 1957793 (N.D. Fla. May 31, 2012). Importantly, there, the state claimed
no interest in prohibiting third-party registrants from using the mails. Id. at *6. Thus, the
arguments presented here were not addressed.
14
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No. 12-40914
dismissing the practice of “parachuting in” by out of state individuals.17 He
emphasized that registration drives are much more effective when conducted by
locally-recruited personnel. Requiring that VDRs be residents of Texas enables
law enforcement officials to more readily find and hold accountable those who
engage in unlawful practices. As such, Andrade has demonstrated a rational
basis for these laws.
Appellees suggest (and the district court and dissenting opinion appear to
accept) that these provisions will prevent non-resident volunteers from
participating in voter registration drives. Nothing in the statute or record
indicates that non-resident volunteers will be prohibited from participating in
voter registration activities in a non-VDR capacity. Indeed, Andrade has made
it clear that the act of passing out voter registration applications or otherwise
encouraging voter participation may be performed by any individual. National
“get out the vote” campaigns can still operate in Texas largely unchanged,
provided there are properly appointed resident VDRs involved to facilitate any
activities that only VDRs are empowered to do (namely the receipt and
transmission of the completed application).18 No evidence was presented that
“get-out-the-vote” efforts actually have been unable to operate prior to or after
the amendments to the VDR Law. Indeed, Appellees’ witness was unaware of
the effects of the VDR Law on other groups’ voter registration efforts in Texas,
only vaguely stating that they have not told him they are conducting drives. We
conclude that Andrade has made a strong showing of the likelihood of succeeding
17
Mr. Slater was asked, “What is your opinion about parachuting in, is that an
effective way to do things?” He answered: “No, it’s not an effective way to do that.”
18
When given the chance to actually submit facts to support his concerns about Texas,
Slater had little to offer beyond the bare conclusion that it is “too difficult” to conduct voter
registration drives in Texas.
15
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No. 12-40914
on appeal in showing that the County and Non-Resident Provisions meet this
threshold.
2. Compensation Provisions
With respect to the Compensation Provisions, we agree that these
provisions encompass some expressive conduct rather than merely the receipt
and delivery of completed voter registration applications. Cf. Meyer, 486 U.S. at
428 (striking down a Colorado law prohibiting payment of petition circulators).
Thus, we assume without deciding that intermediate scrutiny applies to the
compensation provisions. Andrade explains that these provisions are designed
to avoid placing paid “volunteers” in the position of having to meet particular
number or quota requirements in their registration efforts. The incentives for
fraud in a quota system are obvious, as Appellees implicitly concede, and
Appellees do not even wish to pay their “volunteers” on a quota or numerical
basis.19 Instead, they speculate that they will be unable to hire and fire people
who fail to perform properly because they may run afoul of the Compensation
Provisions.20 We conclude that rather than construing these provisions to find
them constitutional, particularly important in a facial challenge case, the district
court accepted Appellees’ proffer of speculative and imagined circumstances that
might make the provisions unconstitutional as applied to a hypothetical
situation. Project Vote v. Kelly, 805 F. Supp. 2d 152 (W.D. Pa. 2011) (declining
to strike down laws regulating compensation of voter registration “volunteers”);
cf. Preminger v. Peake, 552 F.3d 757, 766 (9th Cir. 2008) (holding that Veterans
Affairs office’s proffered reason of protecting patient trust as a basis denying
19
Slater admitted that paying “volunteers” for each registration encourages fraud.
20
Appellees presented expert testimony to the effect that low paid “unskilled workers,”
such as those they would hire to engage in voter registration outreach, need goals in order to
be motivated to work. The expert witness admitted having no actual knowledge of voter
registration work or employees who work in that field.
16
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No. 12-40914
partisan voter registration activities in its facilities was a “reasonable
rationale”).
As discussed above, Appellees did not expressly explain whether this
challenge is facial or “as-applied” in their brief. If facial, as conceded at oral
argument, Andrade has made a strong showing that the challenge will fail
because these sections can apply constitutionally to proscribe quota or
numerically-based compensation situations that all agree are a recipe for fraud.
The State has a legitimate interest in preventing fraud. Buckley, 525 U.S. at
204-05. This provision was enacted in part to rectify problems with the previous
law that enabled an incentive for fake voter registration applications such as
those made through the Project Vote scandal, where employees were paid $1.00
for each voter registration application received. Staff of the House Comm. on
Oversight & Gov’t Reform, 111th Cong. (Feb. 18, 2010); see also Comm. Rep. HB
239, 82d Leg. (Tex. 2011) (“In many of the scandals, the convicted individuals
specifically cited compensation or performance quotas as the incentive to
fraudulently complete voter registration forms.”). The district court discounted
this rationale because Texas’s provisions are stricter than other states, and
found there was no indication that Texas voter registration efforts are more
susceptible to fraud. Andrade, 2012 WL 3155566, at *6-7, 32. However, Texas
has a legitimate interest in protecting against voter fraud.
Even if this challenge were an “as-applied” challenge, Andrade has made
a strong showing that it is likely to fail because Appellees have not shown that
they actually have been prevented or hindered by this statute from hiring
“volunteers” and firing them if they fail to perform properly. Unlike the cases
cited by the district court, see, e.g., Citizens for Tax Reform v. Deters, 518 F.3d
375, 377 (6th Cir. 2008),21 the VDR Law does not require third-party
21
The Ohio code at issue in Citizens for Tax Reform stated “No person shall pay any
other person for collecting signatures on election-related petitions or for registering voters
17
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No. 12-40914
organizations to pay only by hourly wage or limit their ability to discharge or
reward employees, it merely limits Appellees from using a quota-based metric
in isolation to evaluate performance. The hypothetical circumstance where
Appellees fire an employee who simply sat at a table and did nothing to engage
passers-by or encourage them to vote and then are charged with violating the
Compensation Provisions is just that, hypothetical. As such, an “as applied”
challenge rests on a faulty premise.22
3. Photocopying and Personal Delivery Provisions
Turning to the alleged NVRA violations, we agree with Appellees that
federal law preempts state law in this area to the extent of a conflict. We
conclude, however, that Andrade has made a strong showing that she is likely
to prevail in showing that the Photocopying and Personal Delivery Provisions do
not conflict with the NVRA. The NVRA mandates that “[e]ach State shall
maintain for at least 2 years and shall make available for public inspection and,
where available, photocopying at a reasonable cost, all records concerning the
implementation of programs and activities conducted for the purpose of ensuring
the accuracy and currency of official lists of eligible voters.” 42 U.S.C. 1973gg-
(6)(i). Texas law as interpreted by the Secretary of State prevents third-party
facilitators from photocopying applications before they are processed by the
State. Appellees contend that they are copying a “public record” when they
photocopy completed voter registration applications in their possession and that,
therefore, the Photocopying Provision violates the NVRA. Texas Election Code
except on the basis of time worked.” 518 F.3d at 377.
22
The district court made no specific findings of fact with respect to particular harm
to Appellees, stating only: “Plaintiffs presented a significant amount of testimonial and
documentary evidence detailing how the challenged provisions of the Election Code prevent
them from conducting effective voter registration activities in Texas.” Andrade, 2012 WL
3155566, at *33. We cannot give deference to such conclusory findings of fact, particularly in
light of the actual evidence presented to the trial court which provided little in the way of
detail or facts underlying the broad conclusions reached.
18
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No. 12-40914
§ 13.038 states that a VDR “may distribute voter registration application forms
throughout the county and receive registration applications submitted to the
deputy in person.” Though this provision does not explicitly prohibit
photocopying, Andrade interprets this provision to limit VDRs to collecting and
properly delivering applications, thereby impliedly precluding photocopying.23
While nothing in the Texas Election Code precludes public inspection of
properly submitted voter registration applications, including those submitted by
VDRs, Texas law, as construed by Andrade, prevents pre-submission
photocopying. The NVRA pertains to state-maintained registration records,
requiring states to make records available for public inspection and photocopying
for two years after submission and processing. The VDR is “deputized” only to
receive and transmit completed applications, not to “maintain” them for the
state. TEX. ELEC. CODE § 13.038. The state and federal provisions do not
conflict.
Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir. 2012)
is not to the contrary. That case specifically addressed records in the
government’s possession, rather than in the hands of VDRs. Indeed, the NVRA
only applies to records “maintain[ed]” by the State. The district court’s allusion
to the State’s constructive possession through VDRs is not based upon any
statute, state or federal, and the statute does not permit VDRs to “maintain” the
23
Whatever the salutary purpose of the photocopying (as discussed in the dissenting
opinion), the question is whether the Photocopying Provision conflicts with the NVRA, not
whether it is a good idea. We note, however, that Slater testified that the photocopies are kept
“forever” on a database, and he does not know how secure the database is. Appellees state
that they redact sensitive information such as drivers’ license or social security numbers if
required to do so by state law before copying. While we do not question their sincerity, we note
that it is not unreasonable for the State to require parties to obtain public government records
from the government, which can then make sure that appropriate redactions occur before the
records are released.
19
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No. 12-40914
applications.24 Andrade, 2012 WL 3155566, at *17. The entire purpose of
§ 1973gg-(6)(i) is to facilitate public inspection of public records, and possession
by a county-appointed VDR, perhaps one of hundreds in a given county, does not
equate to a public record. Moreover, precluding photocopying until the
applications have changed hands is not mere “administrative chicanery,” but
protects voter privacy. The Fourth Circuit highlighted that fact, noting that
social security numbers may be redacted from applications processed by the
State before being “ma[d]e available” to the public. Project Vote, 682 F.3d at 339.
This additional privacy protection is unavailable where the State has not yet
received the applications. We agree with Andrade that, until these applications
are actually received by a government official, they are not “public records
maintained” by the State. Accordingly, there is no conflict between the NVRA
and the Photocopying Provision.
The NVRA also requires that applicants be able to use the United States
mail to forward their registration to the appropriate officials. The Personal
Delivery Provision of the Texas statute is not to the contrary, as it does not
address whether the prospective voter can mail an application or not, instead
limiting a third-party (the VDR) who has agreed to deliver the application for
the voter from doing so. Texas law requires an appointed VDR accepting voter
registration applications to deliver the forms in person to the county registrar.
See TEX. ELEC. CODE § 13.042.
Again, the two laws do not conflict.25 The NVRA simply does not address
the use of mails by third-parties to submit applications. Section 1973gg-4
24
To the contrary, they must deliver them to the county registrar within five days.
TEX. ELEC. CODE 13.042(b).
25
Rather than trying to construe the state and federal laws in harmony, the dissenting
opinion finds a conflict in that VDRs cannot use the mails. However, the NVRA does not
address whether third-parties to the registration process must be permitted to use the mails.
Thus, there is no actual conflict.
20
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No. 12-40914
requires states to “accept and use” a federal mail-in voter-registration
application. Texas law requires in-person delivery of forms by VDRs to promote
accountability and foreclose the excuse of “lost” applications in the mail. Texas
is understandably concerned with partisan third-party VDRs potentially
motivated to discard applications thought to be adverse to their political
leanings.
Importantly, Texas law requires county registrars to accept every voter-
registration form that arrives through the mails. See TEX. ELEC. CODE §§
13.071–.072. This includes applications sent through the mails by VDRs in
violation of state law. Texas, therefore, “accepts and use[s]” every federal mail
application, while penalizing VDRs for using the mail to submit other people’s
applications. As a result, individuals in Texas may, in every circumstance, send
their applications through the mail. This promotes voter turnout and ease of
registration. Texas’s VDR provisions accomplish a similar goal, albeit based in
a third-party regime. This law does not conflict with the NVRA’s provision for
mail-in applications because individuals may mail their applications in; VDRs
may not.
This element of the VDR Law distinguishes it from the law considered by
the Eleventh Circuit in Cox, 408 F.3d at 1354-55. The state argued there that
the NVRA only requires mailed registration be accepted where the mailing met
additional state requirements and that the state may regulate the method of
delivery. Id. The court rebutted this assertion, however, stating that the NVRA
“simply requires that valid registration forms delivered by mail and postmarked
in time be processed.” Id. at 1354. Unlike the law analyzed there, Texas law
would have undisputedly required acceptance of forms sent in contravention of
state law. In this way, Texas has established anti-fraud provisions by penalizing
nonconforming VDR conduct, yet explicitly set out to comply with the NVRA by
21
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No. 12-40914
accepting applications despite any noncompliance with state law. Again, no
conflict.
We thus conclude that Andrade has made a strong showing of likelihood
of success on this appeal. Where a lawful statute is enjoined, the state suffers
irreparable harm by its injunction and the public interest lies in the enforcement
of state laws. See Maryland v. King, 2012 U.S. LEXIS 5018, at *3 (2012)
(Roberts, as Circuit Justice, in chambers); New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, as Circuit Justice, in
chambers); Coalition for Economic Equality v. Wilson, 122 F.3d 718, 719 (9th
Cir. 1997). While each side can claim harm regardless of how we rule,26 we
conclude that the balance of harms favors Andrade in light of the great
likelihood of success on the merits. Accordingly, she is entitled to a stay pending
appeal.
Although we have, of necessity, addressed the merits of this appeal in our
analysis, we again caution that our ruling does not bind the subsequent merits
panel addressing this appeal, and we disclaim any intent to do so. Mattern v.
Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir. 1997).
26
The dissenting opinion focuses on harm to Appellees’ “business model” from the
Texas restriction. For example, Appellees want to copy applications so they can “follow up”
with potential voters. However, they put on no evidence in the district court that they are
prevented from obtaining information from potential voters by simply asking them for follow-
up contact information such that they can contact the potential voter by the means most
efficacious for that voter (mail, e-mail, telephone, or some other means). The dissenting
opinion also catalogs perceived harms caused by various provisions of the law not at issue
here. For example, the dissenting opinion describes the five-day delivery period requirement
of §13.042(b) as burdensome, although this provision was not enjoined beyond the “personal
delivery” portion. Additionally, this provision has been in place for over twenty years, yet
Slater admitted that his organization conducted a “successful” voter registration drive in
Harris County, Texas in 2008, registering 23,000 voters, apparently finding it possible to
comply with this law.
22
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No. 12-40914
Accordingly, as we ruled by order of September 6, 2012, the Emergency
Motion for Stay is GRANTED, and the district court’s injunction orders are
STAYED until the final disposition of this appeal.
23
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No. 12-40914
DENNIS, Circuit Judge, dissenting.
I respectfully dissent from the majority’s stay of the judgment of the
United States District Court for the Southern District of Texas enjoining the
Texas Secretary of State from applying five provisions of the state election code
against the plaintiff nonprofit voter registration and voting organizations.
Because the majority completely disregards and fails to apply the Supreme
Court’s standards governing a court of appeals’ issuance of a stay of a lower
court’s judgment, it erroneously grants the Secretary’s motion to stay the district
court’s judgment pending her appeal.
The plaintiffs in this action are nonprofit voter registration and voting
organizations that seek to assist African-American and Latino citizens in Texas
in registering to vote and voting in the upcoming federal elections. The
complaint alleged that the Secretary’s enforcement of Texas Election Code
provisions will prevent them from engaging in their chosen, effective methods
and practices for assisting and encouraging citizens to register and to vote.
After a full hearing, the district court issued a preliminary injunction enjoining
the enforcement of five provisions of the state election code, viz., the
requirements that persons providing such assistance must be residents of Texas
and appointed in the particular county in which each assisted citizen resides;
that assisters personally deliver to registrars all completed voter registration
applications obtained within five days; that assisters must refrain from copying
or retaining copies of the completed applications; and that assisters may not be
compensated in any way tied to the number of completed applications they
24
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No. 12-40914
submit. The district court held that the residency, in-county, and compensation
provisions were unconstitutional on First Amendment grounds; and held that
the bans on photocopying and mail-in submissions were preempted by the
National Voter Registration Act (NVRA). The district court refused to stay its
injunction, and the Secretary appealed and sought a stay from this motions
panel.
I. Standards Governing the Issuance of Stays
The standards governing the issuance of stays are well established. As the
Supreme Court explained in Nken v. Holder, 556 U.S. 418 (2009), “[a] stay is not
a matter of right, even if irreparable injury might otherwise result. It is instead
an exercise of judicial discretion, and the propriety of its issue is dependent upon
the circumstances of the particular case. The party requesting a stay bears the
burden of showing that the circumstances justify an exercise of that discretion.
The fact that the issuance of a stay is left to the court’s discretion does not mean
that no legal standard governs that discretion. A motion to a court’s discretion
is a motion, not to its inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.” Id. at 433-34 (internal quotation marks,
alterations, and citations omitted).
“[T]hose legal principles have been distilled into consideration of four
factors: (1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public interest
lies.” Id. at 434 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). As to the
chance of success on the merits, “more than a mere possibility of relief is
25
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No. 12-40914
required. By the same token, simply showing some possibility of irreparable
injury fails to satisfy the second factor. . . . [T]he ‘possibility’ standard is too
lenient.” Id. at 434-35 (internal alterations, quotation marks, and citations
omitted).
“[A] reviewing court may not resolve a conflict between considered review
and effective relief by reflexively holding a final order in abeyance pending
review. A stay is an ‘intrusion into the ordinary processes of administration and
judicial review,’ and accordingly ‘is not a matter of right, even if irreparable
injury might otherwise result to the appellant[.]’” Id. at 426-27 (emphasis added)
(internal citations omitted). A stay pending appeal is an “extraordinary
remedy.” Belcher v. Birmingham Trust Nat’l Bank, 395 F.2d 685, 685 (5th Cir.
1968). It is well established that it is the stay applicant’s burden to demonstrate
that the four factors for obtaining a stay pending appeal are satisfied. E.g.,
Nken, 556 U.S. at 433-34.
In the procedural posture of this case, we are considering whether the
defendants are likely to be able to show that the district court abused its
discretion in granting a preliminary injunction. See U.S. Student Ass’n Found.
v. Land, 546 F.3d 373, 380 (6th Cir. 2008). “A district court’s determination as
to each of the elements required for a preliminary injunction are mixed
questions of fact and law, the facts of which this Court leaves undisturbed unless
clearly erroneous.” Bluefield Water Ass’n, Inc. v. City of Starkville, 577 F.3d 250,
253 (5th Cir. 2009). Questions of law are reviewed de novo, but “the ultimate
decision for or against issuing a preliminary injunction is reviewed under an
abuse of discretion standard.” Id. (quotation marks omitted).
Moreover, under this Court’s precedent, the district court’s denial of a stay
pending appeal is reviewed for abuse of discretion: “[T]he accepted standard for
review of such a stay is whether or not the trial court abused its sound discretion
26
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No. 12-40914
in denying the stay.” Beverly v. United States, 468 F.2d 732, 740 n.13 (5th Cir.
1972); see also, e.g., Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th
Cir. 1992) (same); Allen v. La. State Bd. of Dentistry, 948 F.2d 946, 949 (5th Cir.
1991) (applying abuse of discretion standard to district court’s stay ruling).
Whether or not the plaintiffs prevail in this court, the fact is that they
were granted partial constitutional relief by the district court. The burden is on
the Secretary to establish that the judgment of the district court should not be
enforced. In my judgment, as in the judgment of the district court, the Secretary
has failed to carry her burden to make a strong showing that: (1) the state will
be irreparably injured if a stay is not granted pending her appeal; (2) on the
other hand, there is not a substantial likelihood that the First Amendment
speech and voting rights of the plaintiff voter organizations and of the citizens
they seek to assist will be irreparably injured by the stay; (3) there is a strong
likelihood that the Secretary will succeed on the merits in her appeal; and (4) the
public interest will be served by the stay.
II. No Irreparable Injury Shown By Applicant
The Secretary has not carried her burden of demonstrating that she will
be irreparably injured absent a stay of the district court’s judgment during her
appeal. See Nken, 556 U.S. at 433-34; Hilton, 481 U.S. at 777. “[S]imply
showing some ‘possibility of irreparable injury’ fails to satisfy the second factor.”
Nken, 556 U.S. at 434-35 (citations omitted). The Secretary introduced no
evidence to show that she or the state would be injured by the injunction of the
enforcement of the five election code provisions during her appeal. The majority
does not find from the record that the applicant will be irreparably injured,
either; it merely presumes that a state is irreparably injured whenever any of
27
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No. 12-40914
its laws is enjoined, citing statements to this effect by two members of the
Supreme Court in individual chambers opinions. See Maj. Op., ante at 19-20.
Those statements have not been embraced by the whole Court, however, and
were made as part of a much different standard to be applied only during a
Circuit Justice’s individual determination of whether to issue a stay pending the
Court’s consideration of a petition for certiorari.1 They were not intended as
precedents to be followed by the courts of appeals in deciding whether to stay
judgments of district courts. Instead, those members of the Court, both chief
justices, joined the Court’s majorities in prescribing the standards stated above
that we must adhere to in deciding whether to stay a district court judgment
pending appeal in Nken v. Holder, 556 U.S 418 (2009) and Hilton v. Braunskill,
481 U.S. 770 (1987).
Here, the state has not demonstrated any concrete way in which it would
be irreparably injured by the denial of a stay of the district court’s judgment
during its appeal. The five provisions at issue here are the in-state requirement,
the in-county requirement, the personal delivery requirement, and the
photocopying prohibition, and the compensation prohibition. The Secretary
1
Citing Maryland v. King, No. 12A48, 2012 WL 3064878, at *2 (Roberts, Circuit Justice
2012); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (Rehnquist,
Circuit Justice 1977)). In those cases, the standard the Court applied for obtaining a stay
pending disposition of a petition for a writ of certiorari was entirely different that involved in
an application for a stay pending appeal, imposing a much lower burden on the applicant. See
King, 2012 WL 3064878 at *1. Moreover, as later cases have observed, this statement by itself
is remarkably overbroad. “[A] state may suffer an abstract form of harm whenever one of its
acts is enjoined. To the extent that is true, however, it is not dispositive of the balance of
harms analysis. If it were, then the rule requiring ‘balance’ of ‘competing claims of injury[]’
would be eviscerated. Federal courts instead have the power to enjoin state actions, in part,
because those actions sometimes offend federal law provisions, which, like state statutes, are
themselves ‘enactments of its people or their representatives.’” Indep. Living Ctr. of S. Cal.,
Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (internal citations and alterations, and
emphasis omitted), vacated and remanded on other grounds sub nom. Douglas v. Indep. Living
Ctr. of S. Cal., Inc., 132 S. Ct. 1204 (2012).
28
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No. 12-40914
argues, without presenting evidence or proof, that the district court’s injunction
of the provisions will irreparably injure the state’s efforts to prevent election
fraud. Most importantly in the stay context, the state did not provide any
evidence at all that it has experienced any specific type of fraudulent activity;
it merely asserts that the enjoined laws protect against the threat of fraud.
Tellingly, the majority does not advert to, rely on, or treat as meritorious
the Secretary’s arguments that the state is likely to be irreparably injured
because the injunction will hamper its efforts to deter and detect fraud. Thus,
it is undisputed that the argument lacks persuasion. While a state may enact
a law based on a hunch that it will curb fraudulent conduct, a showing that the
nonenforcement of such a provision will produce irreparable injury must be
based on evidentiary proof. The Supreme Court has admonished that “simply
showing some ‘possibility of irreparable injury[]’ fails to satisfy th[is] factor.”
Nken, 556 U.S. at 434-35 (internal citation omitted). The Secretary has not
attempted to point to any evidence that the state will suffer irreparable injury
because fraud is actually occurring, or that it is likely to occur because of the
injunction of the five Election Code provisions. Without any substantiating
evidence, the possibility of fraud is just that—a possibility.
The majority’s mistake in finding that the Secretary carried her burden
on this factor is evidently due to its inexplicable error in placing the burden of
proof or persuasion on the plaintiffs rather than on the stay applicant, the
Secretary. See Maj. Op., ante at 5 (“[W]e have here the somewhat circular
situation of deciding whether there is irreparable harm to Andrade in part by
analyzing the likelihood of success on the merits by Appellees of showing
irreparable harm to them.”) The majority’s “circular” notion that the plaintiffs
must show their likelihood of success and irreparable injury or else the Secretary
is deemed to be irreparably harmed is dead wrong. The plaintiffs are not
29
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No. 12-40914
required to carry any burden in connection with the question of whether this
court should stay the district court’s judgment. As the Supreme Court has
repeatedly held, the stay applicant, here the Secretary, bears the burden of
proving all four of the factors required for a stay—irreparable injury to herself,
the stay’s lack of substantial injury to the plaintiffs, the Secretary’s strong
likelihood of success on the merits, and the stay’s lack of injury to the public.
There is no justification in law or warrant in the record for the majority to cast
the burden on the plaintiffs and collapse its analysis into a unitary inquiry of
whether the plaintiffs have shown likelihood of success on the merits.
III. Substantial Injury to Appellees
The absence of irreparable injury to the State is made all the more
dramatic in contrast to the substantial injury that will result to the plaintiffs.
The stay applicant bears the burden of showing both factors: that its own
irreparable injury is likely if a stay is not issued, and that the plaintiffs will not
be substantially injured if the stay is granted. See, e.g., Nken, 556 U.S. at 433-
34. The majority elides most of its analysis as to whether the stay of the district
court’s judgment will substantially injure the plaintiffs. The majority also
implicitly places the burden of proving the “substantial injury” prong on the
plaintiffs rather than the defendants. See, e.g., Maj. Op., ante at 7 n.9, 14 n.16.
In my view, it is clear that the plaintiffs’ constitutional rights of expression and
association are likely to be substantially endangered and damaged during the
upcoming federal campaign and elections if the district court’s judgment is
stayed.
The Supreme Court has held that deprivation of First Amendment rights
constitutes injury sufficient to establish irreparable injury. Elrod v. Burns, 427
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U.S. 347 (1976) (plurality opinion). In Elrod, the Court affirmed a preliminary
injunction entered against state officers that barred enforcement of a
“patronage” policy under which civil service employees were required to pledge
loyalty to a particular political party. Id. at 350-51. The Court held that the
policy infringed on the employees’ First Amendment rights. Id. at 373. It
explained, “[i]nasmuch as this case involves First Amendment rights of
association which must be carefully guarded against infringement by public
office holders, we judge that injunctive relief is clearly appropriate in these
cases.” Id. (quotation marks omitted). “The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.”
Id. It added that “[t]he timeliness of political speech is particularly important.
The purpose of the First Amendment includes the need to protect parties in the
free publication of matters of public concern, to secure their right to a free
discussion of public events and public measures, and to enable every citizen at
any time to bring the government and any person in authority to the bar of
public opinion by any just criticism upon their conduct in the exercise of the
authority which the people have conferred upon them[.]” Id. at 374 n.29 (internal
quotation marks, alterations, and citations omitted). Therefore, the Court held
that the plaintiffs were likely to suffer irreparable injury and were entitled to a
preliminary injunction.
Applying Elrod, I conclude that the plaintiffs have demonstrated that if
the district court judgment is stayed they are likely to suffer substantial injury
to their significant First Amendment rights of political speech and association.
In other words, as the district court found, the plaintiffs’ voter-registration
efforts and voting campaigns will be hamstrung by a stay of the district court’s
judgment.
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The plaintiffs are organizations “dedicated to helping citizens become
registered to vote and to encouraging eligible voters to vote.” Voting for Am. v.
Andrade, No. G–12–44, – F. Supp. 2d –, 2012 WL 3155566, at *2 (S.D. Tex. Aug.
2, 2012). Among other avenues, they rely on voter registration drives to convey
their pro-voting message and to achieve their goals of greater registration. Their
mode of operation is to partner with local nonprofit and civil groups to which
they provide funding; they hire temporary employees to serve as canvassers.
Id. at *2-3. Canvassers are often locally hired, but their trainers and managers,
as well as some canvassers, are specially trained to conduct voter-registration
drives and may come from out of state in order to engage in voter-registration
efforts. The canvassers go to high-traffic locations to encourage people to
register to vote and to assist them in doing so.
Crucially, the canvassers collect the applications for delivery and return
them to their supervisors, who in turn perform “quality analysis and control
checks by reviewing the applications for completeness and signs on fraud.” Id. at
*2. They then photocopy or scan all documents with confidential information
redacted for tracking purposes and then mail them to the appropriate state
office. Id. at *2-3. This provision is important because applicants who are added
to the rolls are later contacted and encouraged to actually vote. For applicants
who were not added to voter rolls, the plaintiffs seek to determine if the voter
was rejected for a legitimate reason and if not, the plaintiffs inform them and
contact them to re-register if they are eligible. The plaintiffs also use the
information to keep track of whether voters are being denied the right to vote for
improper reasons, and if so, they may seek legal or political action in response.
Id. at *3. The plaintiffs also make hiring and termination decisions, based in
part on the performance of their employees and volunteers in successfully
registering voters. Id. at *3, *28.
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The five enjoined provisions all serve to hamstring the plaintiffs’ voter-
registration efforts. The in-state restriction targets the plaintiffs because many
of their organizers are trained nationally and come from out of state to engage
in voter registration activity. As the district court found, the organizations’
efforts are materially hampered if they cannot bring people from out of state to
train their canvassers and oversee the process by which the applications are
collected, checked for accuracy and completeness, and returned to the
appropriate state agency. Likewise, the county limitation imposes significant
administrative burdens on the plaintiffs. Employees must be trained and
appointed in multiple counties. In addition, canvassers usually work in high-
foot traffic areas, often in metropolitan regions, where many potential voters will
be from different counties. Thus, canvassers must contend with potential voters
residing in different counties traveling through population centers. Especially
in light of the fact that Texas has 254 counties, this burden is quite severe.
The photocopying restriction is highly detrimental to the plaintiffs’
business model and mode of operations because the plaintiffs photocopy or scan
all documents (with confidential information redacted) so they can track the
applications after mailing. See id. at *2-3. This permits the plaintiffs to follow
up with applicants and encourage them to vote, to determine if a voter was
rejected for a legitimate reason and, if not, to address the problem, and to
determine whether legal or other action would be advisable. It also allows the
organizations to screen applications for potential fraud. If the plaintiffs do not
have copies of these records, they cannot efficiently perform these functions and
this crucial part of their organizational efforts would be very difficult if not
impossible.
The in-person provision requires that the plaintiffs return the completed
applications in person within five days or else face criminal penalties. This
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would impose a significant administrative burden in terms of work hours and
costs because it would require the canvassers’ time and effort to hand the
applications in personally rather than simply sending them by mail. Because
the individual who collects an application must personally deliver it within a
short time period, the provision would also hamper the plaintiffs’ ability to
monitor the canvassers’ work by performing quality analysis and control checks
by reviewing the applications for completeness and signs of fraud, which could
potentially take more than five days given the volume of applications. See id. at
*2-3. The possibility of criminal sanctions would likely make this provision all
the more burdensome.
The compensation provisions will either force the plaintiffs to rely on
volunteer staff only, which would likely decimate their available staff, or else
will prohibit the plaintiffs from disciplining paid canvassers for poor
performance or low productivity. The compensation provision criminalizes the
plaintiffs’ “practice of requiring some bare minimum level of productivity,” which
is an additional injury with which the plaintiffs would be threatened. Id. at *29.
Conversely, the inability to discharge “deadweight” employees might in turn
make it more difficult to function effectively and secure donors. Id. at *31.
As Michael Slater, Executive Director of Project Vote and Voting for
America, stated in his affidavit, the organizations are actually and materially
hampered from engaging in their chosen form of advocacy in Texas. While
“Project Vote would like to directly fund voter registration activity in Texas,” it
is unable to do so “because of restrictions placed on organizations conducting
voter registration drives, and the risk of criminal liability for the organizations
. . . [and] employees[.]” Slater Decl. ¶ 8, at 3.
The district court found that “[s]o long as the provisions remain in force,
the likely violations of Organizational Plaintiffs’ statutory and constitutional
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rights continue, and they remain unable to engage in their chosen form of
political speech and associational activity.” Id. at *33. The plaintiffs are unable
to operate and get out their message. Especially in light of the impending
elections, the timeline of the appeal will likely last beyond the deadline to get
people registered for the November elections, even with an expedited appeal
schedule. Thus, the plaintiffs will not be able to get out their message in time
for the elections, which is a significant and irreparable harm. Consequently, the
district court clearly did not abuse its discretion in finding that the Secretary
failed to carry her burden to show that a stay likely would not substantially
injure the plaintiffs.
IV. Likelihood of Success on the Merits
In addition to the two “injury” factors, the Secretary must make a “strong
showing” that she is likely to succeed on the merits. See, e.g., Nken, 556 U.S. at
434. “[M]ore than a mere possibility of relief is required.” Id. (internal citations
and quotation marks omitted). In my view, the Secretary has not made a strong
showing of a likelihood of success against either the First Amendment or the
preemption claims.
A. First Amendment
The majority commits two grave errors in assessing the likelihood of
success of the Secretary’s argument that none of the enjoined state-law
provisions violates the First Amendment. First, the majority takes an
unprecedentedly narrow view of what conduct implicates the First Amendment.
Second, the majority attempts to make the Secretary’s showing of potential
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success on the merits appear stronger by claiming that the plaintiffs’ burden on
the merits is heavier because they are making facial challenges to the state-law
provisions, an approach the Supreme Court has never required and in fact
disavowed in Citizens United v. FEC, 130 S. Ct. 876 (2010).
1. Voter-registration activities implicate the First Amendment
The plaintiffs are engaged in the First Amendment activities of
encouraging and assisting voters in registering to vote and in voting on election
day. In their methodology, the plaintiffs complete several steps that are woven
into one process. First, they furnish registration applications and persuade
individuals to fill them out and consent to their being filed with the proper
registrars. Second, they copy the completed applications and see that the
originals are properly filed with the correct registrars. Third, they check with
the registrars to make sure that the registration applications have been properly
recorded. Finally, they recontact the newly registered voters and provide them
with assistance and encouragement in traveling to the proper voting places to
vote on election day and render assistance if it appears they have been
wrongfully denied the right to register to vote. See Voting for Am., 2012 WL
3155566, at *2-3.
The Secretary has not met her burden of proving a likelihood of success on
the merits of her First Amendment argument. As the majority opinion observes,
the Secretary concedes that the speech and expressive conduct in which the
plaintiff organizations engage are within the protection of the First Amendment.
See Maj. Op., ante at 10. The majority opinion’s First Amendment analysis
relies on a compartmentalization of the plaintiffs’ activities, reasoning (1) that
the voting regulations target only the physical collection and submission of
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completed voter applications, and (2) that those particular activities are not part
of expressive political conduct. However, the collection and submission of
completed voter application materials are inextricably intertwined with
plaintiffs’ political speech and expressive conduct in persuading and assisting
voters to register, in making certain their registration applications are delivered
and recorded by the proper registrars, and in encouraging and assisting the
voters to actually vote on election day. Thus, all of the plaintiffs’ speech and
activities involved in this entire process constitute core political speech and are
protected by the First Amendment.
The majority’s interpretation and approach is inconsistent with the
Supreme Court’s First Amendment jurisprudence. Federal courts have rejected
invitations like defendants’ to compartmentalize core political activities from the
“procedural” or “ministerial” aspects of those activities; the majority cannot point
to a single federal decision that has approved the separation of expressive
conduct from core political speech as it does today. The Supreme Court rejected
this divide-and-conquer strategy in cases in which the Court considered whether
a similar core political activity, initiative petition circulation, was protected by
the First Amendment. See Buckley v. Am. Constitutional Law Found., Inc., 525
U.S. 182 (1999); Meyer v. Grant, 486 U.S. 414 (1988). In fact, in both Buckley
and Meyer, the state made the nearly identical argument that Texas does
here—it argued that its regulations targeted only the ministerial tasks of
collecting and submitting the signatures on a petition. The Court was asked to
compartmentalize those activities and conclude that the regulations only applied
to the collection and submission of completed initiative applications—but the
Court rejected the state’s invitation to do so and found that all of the circulators’
activities involved in initiative petition circulation were protected.
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In Buckley, the Supreme Court held that the circulation of initiative
petitions and attendant speech and activity is protected by the First
Amendment. 525 U.S. at 192. The Court struck down a Colorado statute
regulating the petition process, holding that three provisions violated the First
Amendment’s free speech guarantee: a provision requiring that initiative-
petition circulators be registered voters; a provision requiring that initiative-
petition circulators wear identification badges bearing the circulator’s name; and
a provision requiring that proponents of an initiative must report names and
addresses of all paid circulators and amounts paid to each circulator. Id. at 186,
192.
In defending the regulations, the State of Colorado made a nearly identical
argument in favor of its regulations on ballot-initiative circulation as the
Secretary does in this case. Citing concerns about fraud in initiative circulation,
Colorado argued that the conduct did not entail protected speech or expressive
conduct: “The circulator collects the votes and presents them to [the] Secretary of
State to be validated and counted. The signers depend upon the circulators to
collect and submit the signatures.” Petition for Certiorari, Buckley v. Am.
Constitutional Law Found., Inc. (No. 97–930), 1997 WL 33485681, at *11
(emphasis added). The state contended, “the circulator assumes a public role
which can be regulated.” Id. at *10. Thus, it argued that the conduct was not
speech entitled to the highest protection of the First Amendment. See id.
The Court rejected this argument, concluding the conduct was important
to voters to ensure that “the political process is responsive to their needs.”
Buckley, 525 U.S. at 196 (quotation marks omitted). The Court held that the
underlying conduct was protected speech because it entailed “communication
with voters about proposed political change[.]” Id. at 192. The communication
at issue was “core political speech” for which First Amendment protection was
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“at its zenith.” Id. at 186-87 (internal quotation marks omitted) (quoting Meyer,
486 U.S. at 422, 425). The Court found that the plaintiffs’ speech was severely
burdened by the law and, applying strict scrutiny, that the significant restriction
on speech was not narrowly tailored to serve the asserted state interests of
“administrative efficiency, fraud detection, [and] informing voters.” Id. at 192
& n.12. Thus, all of the speech and connected conduct was protected.
Similarly, in Meyer v. Grant, the Supreme Court struck down Colorado’s
prohibition of payment for the circulation of ballot-initiative petitions. 486 U.S.
at 416. There, too, the state argued that circulators’ conduct is not protected by
the First Amendment. Colorado argued in its brief: “[T]he petition circulator
[is] the person with the public duty to determine the validity of the signatures
of the persons who sign the petitions. . . . The position is obviously governmental
in nature. The verification of signatures does not constitute speech, and the
prohibition against payment of petition circulators constitutes nothing more
than the prohibition against payment for the act of verifying signatures. The fact
that a person voluntarily links his conduct with a speech component does not
transform the conduct into speech.” Petitioner’s Opening Brief, Meyer v. Grant
(No. 87-920), 1987 WL 880992 at *12 (emphasis added).
The Court rejected Colorado’s argument, holding that the activity of
collecting and verifying signatures is connected with the ballot circulators’
overall message. See Meyer, 486 U.S. at 421 (“The circulation of an initiative
petition of necessity involves both the expression of a desire for political change
and a discussion of the merits of the proposed change.”). The Court explained,
“[t]he First Amendment protects appellees’ right not only to advocate their cause
but also to select what they believe to be the most effective means for so doing.”
Id. at 424. Thus, the Court held that the restriction on paying the circulators
“restrict[ed] political expression” by, inter alia, “limit[ing] the number of voices
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who will convey appellees’ message[.]” Id. at 422. The Court held that petition
circulation is “core political speech” because it involves “interactive
communication concerning political change.” Id. at 424 (internal quotation
marks omitted). First Amendment protection for such interaction is “at its
zenith.” Id. at 425 (internal quotation marks omitted). The Court held that
Colorado’s “refusal to permit appellees to pay petition circulators restricts
political expression” because the “inevitable effect” of the state law was to
“reduc[e] the total quantum of speech on a public issue.” Id. at 422-23.
The Meyer Court concluded that, without question, the subject-matter of
the initiative petition (whether the trucking industry should be deregulated in
Colorado) was a matter of societal concern that the plaintiffs had a right to
discuss publicly without risking criminal sanctions. “The freedom of speech and
of the press guaranteed by the Constitution embraces at the least the liberty to
discuss publicly and truthfully all matters of public concern without previous
restraint or fear of subsequent punishment. The First Amendment was
fashioned to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people. Appellees seek by petition to
achieve political change in Colorado; their right freely to engage in discussions
concerning the need for that change is guarded by the First Amendment.” Id.
at 421 (internal citations and quotation marks omitted).
Further, the Court in Meyer observed that “[t]he circulation of an initiative
petition of necessity involves both the expression of a desire for political change
and a discussion of the merits of the proposed change. Although a petition
circulator may not have to persuade potential signatories that a particular
proposal should prevail to capture their signatures, he or she will at least have
to persuade them that the matter is one deserving of the public scrutiny and
debate that would attend its consideration by the whole electorate. This will in
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almost every case involve an explanation of the nature of the proposal and why
its advocates support it. Thus, the circulation of a petition involves the type of
interactive communication concerning political change that is appropriately
described as ‘core political speech.’” Id. at 421-22 (footnote omitted).
The Court explained that this “core political speech” was inextricably
mixed up in the more procedural aspects of ballot circulation, but that the
speech, like the solicitation of charitable contributions, was nevertheless within
the protection of the First Amendment. Id. at 422 n.5 (citing Schaumburg v.
Citizens for a Better Env’t, 444 U.S. 620, 632 (1980)). The Court stated:
“Soliciting financial support is undoubtedly subject to reasonable regulation but
the latter must be undertaken with due regard for the reality that solicitation
is characteristically intertwined with informative and perhaps persuasive speech
seeking support for particular causes or for particular views on economic,
political, or social issues, and for the reality that without solicitation the flow of
such information and advocacy would likely cease.” Id. (emphasis added)
(internal quotation marks omitted).
Similarly, here, whether certain communities, such as Latino and African-
American communities, are underrepresented in voting in Texas is a matter of
societal concern that plaintiffs have a right to discuss publicly without risking
criminal sanctions. More broadly, the decision of whether to vote and participate
in the democratic process is a matter of public concern. Plaintiffs seek by voter
registration drives and get-out-the-vote campaigns to achieve political change
in Texas; their right freely to engage in discussion concerning the need for that
change is guarded by the First Amendment. Project Vote organizers “approach
members of the community, ensure that applications are completed legibly and
completely, and discuss the importance of voting. [They] encourage canvassers
to point out that if the community wants politicians to listen to their concerns
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and do something about them, then the community as a whole needs to get
registered to vote.” Slater Decl. ¶16, at 5. Canvassers “distribute and collect
voter registration applications while simultaneously discussing the importance
of participating in the democratic process by voting.” Id. ¶18, at 5. The ability
to directly contact potential voters and assist them in filling out and submitting
completed voter applications in person is a key way in which the organizations
fulfill their mission of maximizing voter registration and “it also ensures that
[potential voters] hear [their] message about how important it is to vote.” Id.
¶24, at 8.
Like the circulation of initiative petitions, the canvassing of citizens to
register to vote and to vote in elections “of necessity involves both the expression
of a desire for political change” (including, e.g., the more adequate
representation of historically disenfranchised voters in elections) and “a
discussion of the merits of the proposed change” (e.g., the election of officials
more empathetic to the needs of those voters). Meyer, 486 U.S. at 421. This will
involve an explanation of why it is important that a person as a member of a
class of voters become registered to vote and actually vote on election day. Thus,
providing registration applications to these classes of voters, assisting them in
actually recording their registrations, and assisting them and encouraging them
to vote on election day is core political speech.
Moreover, just as the Court recognized in Meyer that the solicitation of
signatures often involves speech protected by the First Amendment, so should
we recognize here that the state’s attempt to regulate the canvassing of persons
to register to vote and to actually vote on election day would infringe on that
speech. The plaintiffs encourage and assist voters, especially those in
historically disenfranchised groups, in registering to vote and in voting on
election day. Their process involves several steps, all of which are “intertwined.”
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First, they furnish registration applications and persuade individuals to fill
them out and consent to their being filed with the proper registrars. Second,
they copy the completed applications and see that the originals are properly filed
with the correct registrars. Third, they check with the registrars to make sure
that the registration applications have been properly recorded. Finally, they
recontact the newly registered voters and provide them with assistance and
encouragement in traveling to the proper voting places to vote on election day
and render assistance if it appears they have been wrongfully denied the right
to register to vote. See Voting for Am., 2012 WL 3155566, at *2-3. The plaintiffs’
registration and canvassing activities are “characteristically intertwined with
informative and perhaps persuasive speech.” Meyer, 486 U.S. at 422 n.5
(quotation marks omitted).
In both Buckley and Meyer, the Court refused to conclude that the
ministerial act of collecting and submitting signatures for a ballot was the only
conduct truly targeted by the regulations. The Court instead concluded that
those activities were inherently wrapped up with the speech and expressive
conduct that those signature drives entailed. Other courts have likewise
rejected the Secretary’s argument in favor of compartmentalizing registration
procedures from protected speech and conduct. See, e.g., Bernbeck v. Moore, 126
F.3d 1114, 1115 (8th Cir. 1997) (“We reject the Secretary of State’s attempt to
distinguish Meyer with the argument that the registered-voter requirement does
not regulate ‘political speech,’ but rather the ‘process’ of conducting an initiative
election, thereby raising no First Amendment concerns.”).2 Here, Texas is
2
In addition, at least one federal district court has rejected a similar argument in the
context of a voter-registration regulation much like the one at issue here. In League of Women
Voters of Florida v. Cobb, 447 F. Supp. 2d 1314, 1320-21 (S.D. Fla. 2006), the court found the
collection and submission of completed voter applications to be highly important to the
organization and relevant to the court’s First Amendment analysis: “The ability to collect voter
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making the same argument—that the collection and submission of completed
and signed voter registration applications to the county registrars is not
protected conduct because it is a public function that should be divorced from the
expressive elements of plaintiffs’ activities. The same stratagem should be
rejected here. Providing, collecting and delivering voter registration applications
are all inherently bound up in the core political process of registration drives and
get-out-the-vote campaigns.
The majority finds Meyer distinguishable because it addressed the
constitutionality of a ballot initiative circulation law, not a voter-registration
law. See Maj. Op., ante at 11 & n.11. Other than citing its “perception” that
voter registration is different, Maj. Op., ante at 11, the majority does not justify
distinguishing between these types of activities and core political speech
although all other courts have rejected defendants’ invitation to do so.
In light of the literally unprecedented nature of the majority’s approach,
I cannot see how the defendants have established a “strong showing” of
likelihood of success on the merits, which the Supreme Court has emphasized
means “more than a mere possibility of relief[.]” Nken, 556 U.S. at 434 (internal
alterations and quotation marks omitted). Faced with a First Amendment
argument with such a losing track record, it defies logic how the majority can
find the argument to amount to anything more than “a mere possibility” that the
defendants will prevail.
registration applications enables [the plaintiffs] to have follow-up communications with
registrants about issues of common concern. . . . [O]nce [the organization] updates its
database, it sends newly registered voters education materials, including materials about
candidates and issues. Furthermore, [the plaintiffs’] application efforts facilitate[] their
follow-up with the supervisors of elections to resolve any problems with incomplete
applications or missing information and to ensure that their members are properly added to
the voter rolls.” Id. at 1320-21. The court held that the speech and conduct was squarely
within the protection of the First Amendment. Id. at 1332-33.
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2. The “facial challenge” concept does not create a “high hurdle” or
change the burdens and standards governing the issuance of a stay
pending appeal
Contrary to the majority’s reasoning, the plaintiffs’ challenges may be
more correctly described as a mixture of facial and as-applied challenges to the
Secretary’s enforcement of state laws that thwart and burden the plaintiffs’
exercise of First Amendment political speech and associational rights in voter
registration drives and get-out-the-vote campaigns. The majority’s conclusion
that the plaintiffs cannot be making both a facial challenge and an as-applied
challenge rests on a faulty premise. The concept of a facial challenge is not well
settled and there is not one single test for all facial challenges; on the contrary,
the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010)
has contradicted this erroneous idea. Rather, courts apply whatever
constitutional doctrine is relevant to the claim in a particular case. Id. at 919(Roberts, C.J., concurring) (“[T]he debate over whether to consider this claim on
an as-applied or facial basis strikes me as largely beside the point. . . . Citizens
United has a constitutional claim . . . [and] [t]he Government has a defense. . .
. Whether the claim or the defense prevails is the question before us.”)). “[T]he
distinction between facial and as-applied challenges is not so well defined that
it has some automatic effect or that it must always control the pleadings and
disposition in every case involving a constitutional challenge.” Id. at 893(majority opinion) (citing, inter alia, Richard H. Fallon, Jr., As–Applied
Challenges and Third–Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000)
(“[O]nce a case is brought, no general categorical line bars a court from making
broader pronouncements of invalidity in properly ‘as-applied’ cases.”)). The real
significance of the facial/as-applied distinction, the Supreme Court has
explained, is that “it goes to the breadth of the remedy employed by the Court[.]”
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Id. In other words, the facial invalidation of a statute is a broader remedy than
an as-applied invalidation. The remedy in a successful facial challenge is an
order barring enforcement of the law in all circumstances, whereas in an
as-applied challenge, the remedy is an order barring enforcement in some
particular set of circumstances. See id.Likewise, the “no set of circumstances test” that the majority appears to
employ to the plaintiffs’ facial challenge lacks foundation. See, e.g., Doe v. City
of Albuquerque, 667 F.3d 1111, 1126 (10th Cir. 2012) (quoting with approval the
opinion “that the ‘no set of circumstances’ language from [United States v.
Salerno, 481 U.S. 739, 745 (1987)] constituted ‘nothing more than a controversial
dictum’ and . . . that ‘diligent research’ had failed to turn up ‘a single Supreme
Court case—including Salerno itself—in which the holding actually relied on the
‘no set of circumstances’ test’”) (quoting Sonnier v. Crain, 613 F.3d 436, 463-64
(Dennis, J., concurring in part and dissenting in part); see also Scott A. Keller
& Misha Tseytlin, Applying Constitutional Decision Rules Versus Invalidating
Statutes in Toto, 98 Va. L. Rev. 301, 312-14 & nn. 45-59 (2012) (collecting cases).
All this is to say, without exhaustively reiterating the facial versus as-
applied debate, that the majority cannot invoke as a talisman the “facial
challenge” concept to impose a higher burden that the First Amendment
requires for proof of the plaintiffs’ constitutional claims. The majority cannot,
by this sleight of hand, shift the burden of persuasion off of the state and back
onto the Plaintiffs, contrary to the burden and standards governing the issuance
of stays prescribed by the Supreme Court’s holdings in Nken and others. See,
e.g., Nken, 556 U.S. at 433-34. The majority’s approach lacks foundation in law
and is contrary to the standards governing stays pending appeal that place the
burden on the party requesting the stay to establish a likelihood of success.
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3. The Secretary did not make a strong showing that she is likely to
succeed in defending the burdens imposed on First Amendment rights
by the state voter registration provisions enjoined by the district court.
Applying the correct First Amendment principles, the district court
justifiably concluded that the Secretary failed to carry her burden to make a
strong showing that she is likely to succeed on the merits in her appeal. For the
reasons stated by the district court, and for additional reasons assigned herein,
I agree that the Secretary’s motion to stay the district court’s judgment should
be denied.
The burdens imposed on the plaintiffs’ core political conduct and speech
make it impossible for them to conduct voter registration drives and get-out-the-
vote campaigns using their chosen effective methods of operations they have
employed in other states. The state argues that the restrictions imposed by its
laws are necessary to prevent fraud in connection with elections in Texas. The
only specific kind of fraud it identifies, however, are cases in which a voter
registration worker intentionally deprives a person of the opportunity to vote by
failing to deliver timely a completed registration application to the appropriate
registrar, or in which a person fraudulently uses a false identity to register and
to vote in an election. The district court reasonably concluded that the election
regulations at issue burdened the plaintiff organizations’ core political conduct
and speech without narrowly tailoring its restrictions to further its goal of
preventing or punishing these specific kinds of criminal conduct.
With regard to the in-state restriction (Tex. Elec. Code §§ 13.031 (d)(3) &
11.002 (a)(5)), the district court found it was likely to violate the First
Amendment because it “imposes a substantial burden on [plaintiffs’] First
Amendment rights, and Defendants have not been able to explain how it
substantially advances a legitimate state interest.” Voting for Am., 2012 WL
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3155566, at *25. It imposes a substantial burden on the plaintiffs’ rights
because they are prevented from making use of their nationally trained staff and
from engaging in their chosen mode of operation they deem the most effective.
On the other hand, the state did not explain how the law advances the state’s
goal because the state did not produce any evidence that non-residents of Texas
were any more apt to commit these wrongs than Texas residents. Id. at *24-25.
Indeed, the state introduced no evidence that these misdeeds had been
committed in Texas by either residents or non-residents. Id. at *25, *34.
As to the county limitation (Tex. Elec. Code § 13.038), the court found it
was likely to violate the First Amendment because it imposes a heavy
administrative burden on an organization conducting voter registration drives
as its employees must be recruited, appointed, and trained in each county (and
Texas has 254 counties), which would not be feasible or efficient in urban centers
covering multiple counties. Id. at *25-26 & n.21. Conversely, there are little or
no “county-specific issues” that arise vis-à-vis voter registration, as it is a state
or federal matter, and county-level registration would have a negligible impact
on voter fraud. Voting for Am., 2012 WL 3155566, at *26-27. Thus, the law
imposes a heavy administrative burden but is not narrowly tailored to achieving
the state’s goal of fraud prevention.
Finally, the court held that two of the three sub-provisions of the
compensation prohibition (Tex. Elec. Code §§ 13.008 (a)(1) & (3)) violated the
First Amendment.3 The court reasoned that subsections (1) and (3) severely
burden the plaintiffs’ First Amendment activities because they prohibit the
plaintiffs from disciplining canvassers for poor performance or low productivity
and criminalizes the plaintiffs’ “practice of requiring some bare minimum level
3
The plaintiffs did not challenge subsection (2), prohibiting the payment of canvassers
per application collected, because they do not employ that practice.
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of productivity,” and the statute could not and did not draw the line between
bare minima and theoretical “excessively high quotas.” Voting for Am., 2012 WL
3155566 at *29. In addition, it would make it nearly impossible to discharge
“deadweight” employees, which might accumulate in the organization as time
progresses, which in turn would make it more difficult to function effectively,
secure donors, etc. Id. at *30-31.4 The court postponed the decision of whether
strict scrutiny would apply to this provision, and held that it did not even pass
muster under the less restrictive Anderson-Burdick balancing test. Id. at *32.
Though the state advanced a legitimate state interest (preventing voter fraud),
the law is not narrowly tailored as it would criminalize common necessary
employment practices. Id.
The majority concludes that the state’s interests in deterring and
preventing fraud are sufficient to sustain the election regulations. However, the
Secretary has not introduced evidence of fraud; the majority takes it at face
value that an unsubstantiated risk of fraud is enough to justify a significant
infringement on the plaintiffs’ First Amendment rights. As Justice Thomas
noted in his concurring opinion in Buckley, however, “the State has failed to
4
The majority’s opinion does not engage with the district court’s finding on this point,
but rather calls the threat “hypothetical,” citing the fact that the plaintiffs are making a facial
challenge. Maj. Op., ante at 16. But this does not change the fact that the text of the
compensation provision prohibits common and necessary employment practices. the Secretary
challenged the district court’s finding as to this point, arguing that the district court erred in
interpreting section 13.008, the compensation provision, as forbidding organizations to fire
employees for “lack of diligence.” She argues that the court should have interpreted the
provision to imply that only compensation for “excessively high quotas” would be criminalized
under the statute. Contrary to the majority’s suggestion, it is the Secretary’s, not the
plaintiffs’, interpretation that is “hypothetical” because the Secretary cannot point to a firm
reason why this limitation must be read into the statute. The “excessively high quota”
limitation does not appear in the plain text of the statute, and the Secretary does not proffer
any principle of statutory interpretation that would permit the court to conclude that the
statute only applies to “excessively high quotas.” Cf. Tex. Elec. Code § 13.008. Thus, the
Secretary has not made a strong showing that she is likely to prevail on this argument.
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satisfy its burden demonstrating that fraud is a real, rather than a conjectural,
problem.” 525 U.S. at 210 (Thomas, J., concurring).
The majority’s reasoning is doubly unpersuasive because, with regard to
the regulations the district court found likely unconstitutional, the court not only
noted that the Secretary failed to demonstrate any evidence of actual fraud, but
also that the Secretary failed to demonstrate how the provisions would
reasonably achieve the goal of fraud prevention. Thus, although a state need not
have evidence of fraud to justify enactment of a particular election regulation,
without objective evidence or expert opinion, the Secretary failed to make a
strong showing that the measure actually prevented or reduced fraudulent acts
and was narrowly tailored to do so.
Moreover, other laws preexisting the third-party registration law were in
place to prevent fraud, see, e.g., Tex. Elec. Code § 13.007 (stating that a person
commits an offense if he or she “knowingly makes a false statement or requests,
commands, or attempts to induce another person to make a false statement on
a registration application”); as the district court reasoned, enjoining the
provisions in question were not demonstrated to materially lessen the deterrent
effect of the whole scheme of applicable Texas laws.
For these reasons, the Secretary did not meet her burden of making a
strong showing that she is likely to prevail on the merits. The district court did
not abuse its discretion in denying the Secretary’s motion for a stay pending
appeal as to the provisions enjoined pursuant to the First Amendment.
B. Preemption
The Secretary also has not met her burden of making a strong showing of
her likelihood to succeed on the merits in proving that two of the Texas election
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provisions, the photocopying ban and the in-person delivery of applications
requirement, have not been preempted by the National Voter Registration Act
(NVRA).
1. Preemption under the Elections Clause
The right to vote has long been recognized as central to the protection and
exercise of the other rights guaranteed in our society. As noted by the Supreme
Court in Wesberry v. Sanders, 376 U.S. 1, 17 (1964), “[o]ther rights, even the
most basic, are illusory if the right to vote is undermined.” Nevertheless, many
practical barriers remain that inhibit the free exercise of this recognized right.
Among such barriers are restrictive or prohibitively inconvenient voter
registration requirements that discourage or even prevent qualified voters from
registering and participating in elections. “In an attempt to reinforce the right
of qualified citizens to vote by reducing the restrictive nature of voter
registration requirements, Congress passed the National Voter Registration Act
in 1993.” Ass’n of Comm’y Orgs. for Reform Now v. Miller, 129 F.3d 833, 835
(6th Cir. 1997) (citing 42 U.S.C. §§ 1973gg(a),(b)).
The NVRA reflects the view of Congress that the right to vote “is a
fundamental right,” that government has a duty to “promote the exercise of that
right,” and that discriminatory and unfair registration laws can have a
“damaging effect on voter participation” and “disproportionately harm voter
participation by various groups, including racial minorities.” 42 U.S.C. §
1973gg(a). Congress enacted the NVRA in order to “increase the number of
eligible citizens who register to vote” in federal elections, “enhance[] the
participation of eligible citizens as voters[,]” “protect the integrity of the electoral
process[,]” and “ensure that accurate and current voter registration rolls are
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maintained.” Id. § 1973gg(b); Project Vote/Voting for Am., Inc. v. Long, 682 F.3d
331, 334 (4th Cir. 2012).
The NVRA directs states to establish at least three methods of voter
registration for federal elections: “(1) by application made simultaneously with
an application for a motor vehicle driver’s license[,]” “(2) by mail application”
using a federally prescribed form, and “(3) by application in person” at
designated voter registration agencies. 42 U.S.C. § 1973gg–2(a). It further
requires that states conduct a general program to remove ineligible voters from
official voter lists without engaging in improper voter removal. Id. §
1973gg–6(a)(3)-(4); Long, 682 F.3d at 334.
Section 8(i)(1) of the NVRA mandates public disclosure of voter
registration activities. Id. § 1973gg–6(i)(1). It generally requires states to
“make available for public inspection and, where available, photocopying at a
reasonable cost, all records concerning the implementation of programs and
activities conducted for the purpose of ensuring the accuracy and currency of
official lists of eligible voters[.]” Id. “This language embodies Congress’s
conviction that Americans who are eligible under law to vote have every right
to exercise their franchise, a right that must not be sacrificed to administrative
chicanery, oversights, or inefficiencies.” Long, 682 F.3d at 334-35.
Of the eight regulations at issue in the present case, the district court
entered an order preliminarily enjoining the enforcement of Texas’ photocopying
prohibition (Tex. Elec. Code § 13.038, as interpreted by the Secretary) and
personal delivery requirement (id. § 13.042), finding them to be preempted by
the NVRA. When preemption challenges are brought against state election laws,
the Elections Clause of the Constitution governs. See Foster v. Love, 522 U.S. 67,
69 (1997).
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“The Elections Clause establishes a unique relationship between the state
and federal governments.” Gonzales v. Arizona, 677 F.3d 383, 390 (9th Cir.
2012) (en banc). The Elections Clause provides: “The Times, Places and Manner
of holding Elections for Senators and Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of choosing Senators.”
U.S. Const. art. I, § 4, cl. 1 (spelling modernized). Thus, while states have the
initial responsibility of establishing election laws and regulations, Congress has
the authority to “make or alter” the states’ regulations. The text of the
constitutional provision expressly delegates to Congress ultimate supervisory
authority over elections laws.
When states enact election laws that are contrary to federal election laws,
the state laws are unquestionably preempted. See Ex Parte Siebold, 100 U.S.
371, 384 (1879) (when Congress’ power under the Elections Clause is “exercised,
the action of Congress, so far as it extends and conflicts with the regulations of
the State, necessarily supersedes them”); Foster, 522 U.S. at 69 (stating that the
Elections Clause “invests the States with responsibility for the mechanics of
congressional elections, but only so far as Congress declines to preempt state
legislative choices”) (internal citation omitted). However, unlike preemption for
ordinary laws under the Supremacy Clause, there is no presumption against
preemption for state election laws that are contrary to federal election mandates.
As the court in Gonzales explained, “[i]n contrast to the Supremacy Clause,
which addresses preemption in areas within the states’ historic police powers,
the Elections Clause affects only an area in which the states have no inherent
or reserved power: the regulation of federal elections.” 677 F.3d at 392. “[T]he
Supreme Court has never articulated any doctrine giving deference to the states
under the Elections Clause.” Id. at 400 (Kozinski, C.J., concurring).
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Under our Circuit precedent, if a state election law “directly conflicts” or
is “inconsistent with” a federal election law, the state law is preempted under
the Elections Clause. Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773, 775,
776 (5th Cir. 2000). Applying this rule, the district court held that the two
regulations at issue “directly conflicted” with the NVRA and were therefore
preempted under the Elections Clause.
The district court did not find it necessary to go any further than its
“direct conflict” analysis. However, this court’s language in Bomer finding
preemption where a state election law “directly conflicts” or is “inconsistent
with” a federal election law has deeper roots in Supreme Court precedent
indicating that preemption under the Election Clause entails a more searching
analysis than preemption under the Supremacy Clause. See id. (citing Foster,
522 U.S. at 68). Bomer reflects that there is no presumption against preemption
when it comes to state laws that “conflict” or are “inconsistent with” federal
election regulations enacted by Congress, consistent with the Supreme Court’s
opinion in Foster v. Love. See 522 U.S. at 69 (stating that the Elections Clause
“is a default provision; it invests the States with responsibility for the mechanics
of congressional elections, but only so far as Congress declines to preempt state
legislative choices”) (internal citation omitted).
As the Ninth Circuit persuasively elucidated in Gonzales v. Arizona,
“[w]hile Congress may not always choose to exercise [its Election Clause] power,
‘when exercised, the action of Congress, so far as it extends and conflicts with
the regulations of a State, necessarily supersedes them.’” 677 F.3d at 391
(alteration omitted) (quoting Ex Parte Siebold, 100 U.S. at 384, and citing Foster,
522 U.S. at 69). The Ninth Circuit in Gonzales concluded that under Siebold and
Foster, courts should approach preemption under the Elections Clause by
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reading state and federal election laws together as one single system of election
law. It explained:
Reading Siebold and Foster together, we derive the following
approach for determining whether federal enactments under the
Elections Clause displace a state’s procedures for conducting federal
elections. First, as suggested in Siebold, we consider the state and
federal laws as if they comprise a single system of federal election
procedures. Siebold, 100 U.S. at 384. If the state law complements
the congressional procedural scheme, we treat it as if it were
adopted by Congress as part of that scheme. See id. If Congress
addressed the same subject as the state law, we consider whether
the federal act has superseded the state act, based on a natural
reading of the two laws and viewing the federal act as if it were a
subsequent enactment by the same legislature. Foster, 522 U.S. at
74, 118 S.Ct. 464; see id. at 72–73, 118 S.Ct. 464. If the two statutes
do not operate harmoniously in a single procedural scheme for
federal voter registration, then Congress has exercised its power to
“alter” the state’s regulation, and that regulation is superseded.
Gonzales, 677 F.3d at 394.
Applying the principles of Foster and Siebold, as explained in Gonzales
and Bomer, I conclude that the Secretary has not met her burden of showing a
strong likelihood of success that the Texas photocopying ban and personal
delivery requirement are not preempted by the NVRA either under the Fifth
Circuit’s “direct conflict” or “inconsistent with” test or under the Ninth Circuit’s
failure to “operate harmoniously” test.
2. The photocopying provision
As interpreted by the Secretary, section 13.038 flatly prohibits any person
collecting voter registration applications from photocopying them before they are
delivered to the registrars. The Secretary does not change her interpretation on
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appeal. Relying on the Secretary’s interpretation of how section 13.038 is to be
enforced, the district court held that the photocopying provision (Tex. Elec. Code
§ 13.038) directly conflicts with the NVRA provision, 42 U.S.C. § 1973gg-6(i)(1).
Subsection 6(i)(1) provides:
Each State shall maintain for at least 2 years and shall make available for
public inspection and, where available, photocopying at a reasonable cost, all
records concerning the implementation of programs and activities conducted for
the purpose of ensuring the accuracy and currency of official lists of eligible
voters, except to the extent that such records relate to a declination to register
to vote or to the identity of a voter registration agency through which any
particular voter is registered.
In Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir.
2012), the court considered the State of Virginia’s practice of prohibiting public
disclosure of applications that had been accepted but rejected by registrars.
Voting rights groups wanted to see the ones that had been rejected to ensure
transparency in the voter registration process, and to investigate whether a
group of students at a historically African-American university had been
unlawfully disenfranchised. Id. at 333-34. The court held that all completed
applications must be made available for copying under the NVRA. Id. at 336.
The Fourth Circuit held that in this provision, because “the phrase ‘all records
concerning the implementation of programs and activities conducted for the
purpose of ensuring the accuracy and currency of official lists of eligible voters’
unmistakably encompasses completed voter registration applications, such
applications fall within Section [6](i)(1)’s general disclosure mandate.” Id. The
court reasoned that reviewing voter registration applications is a “program” and
“activity” because it is carried out to maintain voter rolls for the state, and the
registration applications are “records” that concern the “implementation of” that
“program[] and activit[y]” because they are the means by which voters establish
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their eligibility to vote. Id. at 335-36. The court noted that the state was
entitled to redact sensitive information, such as social security numbers, when
it complied with the NVRA provision, thus obviating the state’s principal
concern. Id. at 334, 339. The court concluded that Virginia’s provision was
preempted by the NVRA. Id. at 337.
In addition to its textual analysis, the court emphasized that the NVRA
expresses a policy strongly favoring transparency and public disclosure of
completed voter applications. See id. at 334. The NVRA photocopying provision
“embodies Congress’s conviction that Americans who are eligible under law to
vote have every right to exercise their franchise, a right that must not be
sacrificed to administrative chicanery, oversights, or inefficiencies.” Id. at 334-
35.
Following Long, the district court in the present case found that the
NVRA’s rule requiring states to “make available” the records for photocopying
“unmistakably encompasses completed voter registration applications.” Voting
for Am., 2012 WL 3155566, at *16-17. The sound reasoning in Long is
substantially applicable to this case. As Judge Wilkinson noted in Long, the
NVRA is intended to guard against franchise sacrifice to state “administrative
chicanery, oversights, or inefficiencies” in the conduct of federal elections. See
682 F.3d at 335. The NVRA embodies a strong policy in favor of transparency
in election regulations, which extends to the disclosure of completed voter
applications. Here, the Texas provision punishing a person for retaining a
photocopy of a completed application before filing is just as detrimental, if not
more so, to the NVRA’s mandate of public disclosure of voter registration
activities. Texas’ photocopying ban prevents VDRs from providing their own
check (by retained photocopies) against franchise sacrifice to “administrative
chicanery, oversights, or inefficiencies” that the NVRA was enacted to guard
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against. Texas’ photocopying restriction applies to completed applications
whether or not VDRs redact sensitive information; thus, it provides for
punishment even if a VDR redacts voters’ sensitive information from the copy.
Therefore, the photocopying restriction is not narrowly designed to protect
voters’ privacy, which could be safeguarded by laws specifically punishing use
or abuse of such sensitive information. Consequently, in my view the district
court did not err or abuse its discretion in deciding that there is a substantial
likelihood that the Texas photocopying ban has been preempted because it is
inconsistent and disharmonious with the NRVA public disclosure provisions.
3. The in-person provision
Next, the district court in the present case held that the personal delivery
requirement directly conflicted with NVRA provisions 42 U.S.C. §§
1973gg–4(a)(1)-(2) and 1973gg–6(a)(1). Subsection 4 provides that “[e]ach State
shall accept and use the mail voter registration application form prescribed by
the Federal Election Commission pursuant to section 1973-7(a)(2)[.]” Id. §
1973gg-4(1). Subsection 2 states that “notwithstanding any other Federal or
State law, in addition to any other method of voter registration provided for
under State law, each State shall establish procedures to register to vote in
Elections for Federal office . . . by mail application pursuant to section
1973gg–4[.]” Id. § 1973gg–2(a). Subsection 6 likewise requires each state to
“ensure that any eligible applicant is registered to vote in an election . . . in the
case of registration by mail under section 1973gg-4” if the form is postmarked
in time. Id. § 1973gg–6(a)(1).
The district court interpreted these provisions to mean that the federal
mail-in application “must be allowed in all circumstances.” Voting for Am., 2012
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WL 3155566 at *18 (citing Charles H. Wesley Educ. Found v. Cox, 408 F.3d 1349,
1354 (11th Cir. 2005).) In Charles H. Wesley, the Eleventh Circuit held that
Georgia’s voter-registration law prohibiting the mailing of “bundled” voter
applications was preempted by the NVRA. It explained: “By requiring the
states to accept mail-in forms, the Act . . . regulate[s] the method of delivery, and
by so doing overrides state law inconsistent with its mandates. The Act simply
requires that valid registration forms delivered by mail and postmarked in time
[to] be processed.” 408 F.3d at 1354.
In the present case, the district court found that federal law makes no
distinction between VDRs and voters mailing in applications on their own
behalf, and that Texas’ in-person requirement is inconsistent with the federal
law, which requires that states “accept and use” all federal mail-in applications.
Voting for Am., 2012 WL 3155566, at *18-19 (citing Project Vote v. Blackwell, 455
F. Supp. 2d 694, 702 n.6 (N.D. Ohio 2006) (finding a state law “requir[ing]
personal delivery of voter registration forms . . . would clearly run afoul of the
NVRA”).) Therefore, the district court held the personal delivery requirement
likely to be preempted.
Texas states that it will accept all mailed in applications, regardless of
whether the sender violates state law in mailing them in rather than submitting
them in person. However, even if this is the case, it remains that Texas
prohibits third parties from submitting applications by mail under pain of
criminal punishment, even though mail-in applications must be permitted under
federal law. The public is entitled under federal law to take advantage of mail-in
voter applications. The Texas law punishes third parties criminally for
submitting voter applications by mail when there is a federal directive to the
contrary. See Tex. Elec. Code § 13.043. The NVRA makes no distinction or
exception for third parties, such as VDRs, mailing in applications. There is a
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direct conflict and certainly a “disharmony” or “inconsistency,” causing the law
to be preempted by the NVRA. The Secretary bears a heavy burden of
demonstrating that she is likely to succeed on the merits of her challenge, and
she has not met her burden here.
V. Public Interest
Finally, a stay of the district court’s judgment will not serve the public
interest. See, e.g., Hilton, 481 U.S. at 777. A stay pending appeal is contrary to
the public interest because, as the Supreme Court has stated, “voting is of the
most fundamental significance under our constitutional structure.” Burdick v.
Tadashi, 504 U.S. 428, 433 (1992) (quotation marks omitted). The laws here
“reduc[e] the total quantum of speech on [the] public issue[s]” of voter
registration and minority enfranchisement, see Meyer, 486 U.S. at 423, and are
likely to diminish the total number of eligible voters who are registered in Texas,
especially among historically underrepresented communities.
Texas’ voter registration laws unquestionably made it more difficult to
register to vote, thereby decreasing the level of enfranchisement in the state.
The plaintiffs’ voter-registration drives “are primarily aimed at registering
voters from demographic groups . . . with a history of underrepresentation in the
political process.” Voting for Am., 2012 WL 3155566, at *2. As the district
court found, it is in the public interest to protect constitutional rights and
effectuate the enforcement of the federal statute, and, most importantly, to
ensure that all voters have access to the polls on election day. See id. at *35.
As discussed above, it is not clear how the enjoined provisions will actually help
fight voter fraud; and on the other hand, the provisions are alleged to contribute
to disenfranchisement of vulnerable and historically disenfranchised voters, such
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as the young, the elderly, the disabled, and racial minority communities in
Texas.
The state’s asserted interest in preventing voter fraud cannot justify the
severe impingement on plaintiffs’ voter-registration rights and the concomitant
intrusion into the ability of many historically disenfranchised voters to register
to vote. In this election cycle, two Voting Rights Act panels have refused to
preclear portions of Texas’ recently overhauled election law regime, finding that
the redistricting and the voter ID provision are both likely to have the effect of
reducing the number of minority voters eligible to vote in the state. See Texas
v. Holder, No. 12-0128, – F. Supp. 2d –, 2012 WL 3743676 (D.D.C. Aug. 30,
2012); Texas v. United States, No. 11-1303, – F. Supp. 2d –, 2012 WL 3671924(D.D.C. Aug. 28, 2012) (redistricting). As Judge Tatel persuasively
demonstrated in his opinion for the three-judge panel, the voter ID law at issue
was akin to other historical barriers to enfranchisement such as poll taxes,
literacy tests, grandfather clauses, and property qualifications. Those barriers,
“though race-neutral on their face,” were calculated to reduce the number of
racial minorities to vote. Texas v. Holder, 2012 WL 3743676, slip op. at *8. The
majority’s opinion today, I fear, lends legitimacy to a modern iteration of these
historical ballot access measures—draconian voter-registration regulations.
The Secretary has failed to carry her burden to make a strong showing
that there is a likelihood that she will prevail on the merits; that the state will
be irreparably injured by the lack of a stay; that the plaintiffs will not be
substantially injured by the stay; and that the public interest will not be harmed
by the stay. The majority disregards the Supreme Court’s declaration of the
burden of proof and standards governing the issuance of a stay of a district
court’s judgment and it clearly errs in granting the stay. Accordingly, I dissent.
61