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Texas Election Laws Upheld by 5th Circuit

(CN) - Concerns about election fraud in Texas justify the state's strict rules on voter-registration drives, a divided 5th Circuit ruled.

Project Vote, a Washington-based nonprofit, filed suit in February 2012, alongside its affiliate Voting for America and two Galveston County residents who claimed they had been illegally kicked off voting rolls.

Voting for America manages voter-registration drives for black and Latino communities. It took issue with several laws Texas passed in 2011 that restrict the work of volunteer deputy registrars, individuals.

Texas law requires volunteer deputy registrars to be Texas residents, and they can register voters only in counties where they have been appointed by county registrars.

The state also makes it a crime to pay volunteer deputy registrars based on the number of voter registrations they submit, or to give registration quotas as a condition of employment or pay.

The rules further ban volunteer registrars from photocopying registration applications and require them to deliver completed applications to the county registrar in person rather than by mail.

U.S. District Judge Gregg Costa granted Project Vote an injunction against the regulations in August 2012, finding that the rules would keep minorities from the polls and were preempted by the U.S. Constitution and federal law.

After the 5th Circuit stayed Costa's ruling, Project Vote took its case to the Supreme Court, which denied the nonprofit's emergency motion to vacate the stay pending appeal.

On a 2-1 vote Thursday, the 5th Circuit sided with Texas.

Project Vote had argued that barring out-of-state residents from serving as volunteer deputy registrars in Texas would prevent efficient voter registration drives. It also claimed that restricting the volunteers to the counties where they registered would be overly burdensome for those canvassing in major cities, which often encompass several counties.

Meanwhile, Texas claimed that if out-of-state residents were allowed to work as volunteer deputy registrars, they could be more likely to commit fraud because they could easily duck the jurisdiction of state prosecutors. State officials justified the in-county provision as a way to boost accountability.

The majority disagreed with Project Vote's premise that what volunteer deputy registrars do-collect, review and deliver voter registration forms-is constitutionally protected speech.

"Assuming a voter registration application is speech, it is the voter's speech indicating his desire to be registered," Judge Edith Jones wrote for the majority.

"Soliciting, urging and persuading the citizen to vote are the forms of the canvasser's speech, but only the voter decides to 'speak' by registering. Logically, what the [volunteer deputy registrar] does with the voter's form follows the voter's completion of the application but is not itself 'speech.'"

The court also ruled that the photocopying and personal-delivery provisions were not preempted by the National Voting Registration Act, as Costa had ruled.

It remanded the case back to the federal judge.

In a 17-page dissent, Judge W. Eugene Davis emphatically disagreed with the majority.

He took issue with the majority's piecemeal approach to Project Vote's registration drives, and compared the Texas rules to Colorado laws the U.S. Supreme Court struck down as unconstitutional.

"The majority's effort to slice the various portions of the registration effort into protected and unprotected activity ignores the fact that plaintiffs' registration activity implicates not only their speech rights, it also implicates their freedom of association," Davis wrote. "Both are equally protected by the First Amendment. The plaintiffs' activities do not cease when the voter registration application is complete. The plaintiffs receive and submit the application for processing and follow up with the registrar to ensure that the registration application resulted in a registered voter.

"They also follow up with voters to encourage them to vote. The freedom of the plaintiffs to associate with other for the advancement of common beliefs is protected by the First and Fourteenth Amendments."

Project Vote did not respond to a request for comment on the ruling.

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