Texas defends signature rule for voter registration at Fifth Circuit

(CN) — A Texas law requiring an original “wet” signature on voter registration forms is unconstitutional because it has nothing to do with an applicant’s eligibility to vote, a nonprofit told a Fifth Circuit panel Monday.

Founded with the name Long Distance Voter in 2008, Vote.org touts itself as the largest get-out-the-vote technology platform in America.

While it labels itself nonpartisan, its goal of “reaching historically underserved voters of color and underrepresented younger voters” could be perceived as a threat to Republicans, as minority and young voters typically vote for Democrats.

Vote.org introduced an app in 2018 to ease voter registration by letting users upload electronic images of their signatures and provide all needed registration info.

The program then automatically filled in the data, along with the signature, on voter registration forms and Vote.org sent the forms to their fax vendor, which faxed them to the county registrar’s office.

To comply with a Texas law passed in 2013 authorizing registration by fax, Vote.org had another vendor then mail printed versions of the applications to county registrars within four business days of the fax transmission, a method state lawmakers intended to make it possible for procrastinators to beat the registration deadline with a faxed application and then follow up with an original signed copy.

According to Texas, Vote.org’s rollout of the software was an “unmitigated disaster.” For instance, 15% of its applications in Dallas County had signatures lines that were blank, blacked out or illegible and 259 people filled out forms that Vote.org never faxed to the county.

In response, then-Texas Secretary of State Rolando Pablos issued a press release days before the 2018 midterm elections telling voters online registration is not allowed in Texas and advising counties applications submitted through Vote.org’s application were not complete because they contained digital signatures.

Texas codified and clarified the rule in May 2021 with passage of House Bill 3107, which stipulates registering via fax requires an application containing the voter’s “original signature” be submitted by personal delivery or mail within four days of faxing the form.

Vote.org sued the elections administrators of four of Texas’ most populous counties – Bexar (seat San Antonio), Travis (Austin), Dallas, and Cameron (Brownsville) – alleging the signature requirement violates the First and 14th Amendments and section 1971 of the Civil Rights Act because an original signature is irrelevant to a person’s qualifications for voting.

Texas Attorney General Ken Paxton, a Republican, intervened to defend the statute and appealed to the Fifth Circuit after U.S. District Judge Jason Pulliam, a Black appointee of Donald Trump, sided with Vote.org and enjoined Texas from enforcing the rule in a June 2022 order.

The rule’s blockage was short-lived, however, as a three-judge panel of the Fifth Circuit quickly stayed Pulliam’s order.

Another panel of the New Orleans-based appellate court heard arguments Monday.

Michael Abrams, a Texas assistant solicitor general, argued Vote.org lacks standing to bring a claim under the materiality provision of federal voting laws, which guarantees the right of any individual to vote without being subject to immaterial errors or omissions on a registration form, because it does not have voting rights.

U.S. Circuit Judge Stephen Higginson pointed out that the state’s driver’s license administrator, the Texas Department of Public Safety, allows people to use a stylus pen to sign their signatures on screens.

“Therefore that’s not signing the form either,” said Higginson, a Barack Obama appointee.

“That’s providing a signature and having it captured with a digital format,” Abrams acknowledged. “And I recognize it might be a subtle distinction. But I think that there is still a meaningful difference between taking a picture of your signature and actually signing something whether it’s on a stylus or a piece of paper.”

Texas claims wet signatures also deter voting fraud as requiring a prospective voter to physically sign the application directly below a warning they can be charged with perjury for lying impresses on them the importance of providing truthful information.

But Vote.org’s counsel, Uzoma Nkwonta with the Elias Law Group in Washington, noted that county registrars who intervened as defendants in the case admitted they don’t use the signatures on applications to root out fraud by comparing them to other versions of the applicants’ signatures.

Nkwonta argued that under the Civil Rights Act, denying someone the ability to register is the same as denying them a ballot.

“You cannot deny someone the ability to register, you cannot reject their registration application simply because of an immaterial omission,” he added.

The Biden administration filed an amicus brief in support of Vote.org. Justice Department attorney Noah Bokat-Lindell spoke briefly in Monday's hearing. Echoing Nkwonta, he said Texas' wet signature rule should be blocked since it not material to qualifying to vote in the state.

U.S. Circuit Judges Rhesa Barksdale and Leslie Southwick, appointees of George H.W. Bush and George W. Bush, respectively, rounded out the panel.

The judges did not say when they would rule on the case.  

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