(CN) — Texas’ secretary of state asked a Fifth Circuit panel Thursday to dismiss two voting rights lawsuits from the Texas Democratic Party, one challenging voter registration rules and the other a law Democrats say was passed to disenfranchise left-leaning college students by placing restrictions on temporary polling places.
Days before the state’s voter registration deadline for the 2018 midterm elections, then-Texas Secretary of State Rolando Pablos issued a press release telling voters online registration is not allowed in Texas, and advising counties applications submitted through a cellphone app created by the advocacy group Vote.org were not complete because they contained digital signatures.
Following Pablos’ guidance, county registrars notified 2,400 would-be voters their applications had been rejected as incomplete.
After Texas Governor Greg Abbott appointed fellow Republican Ruth Hughs as secretary of state, the Texas Democratic Party sued her in San Antonio federal court in January 2020, claiming the state’s “wet-signature rule” requiring a hand signature on a physical document is unconstitutional.
U.S. District Judge Orlando Garcia, a Bill Clinton appointee, refused to dismiss the lawsuit. So Hughs appealed to the New Orleans-based Fifth Circuit, seeking dismissal based on sovereign immunity.
Under U.S. Supreme Court doctrine established by its 1909 decision in Ex Parte Young, for a litigant to defeat the sovereign immunity state officials enjoy under the 11th Amendment they have to prove an ongoing violation of federal law and establish the official has some connection to the state’s enforcement of the challenged conduct.
Hughs claims she has sovereign immunity because the Texas Democratic Party is taking issue with part of the Texas Election Code that county voter registrars enforce.
Besides, Hughs says, there is no wet-signature rule.
Texas Deputy Solicitor General Matthew Frederick pressed that point in a virtual hearing Thursday before a three-judge panel of the Fifth Circuit.
He said Pablos’ press release warning off county registrars from accepting voter-registration forms with digital signatures does not purport to announce a rule and does not say anything about wet signatures.
U.S. Circuit Judge Catharina Haynes, a George W. Bush appointee, asked Frederick why Hughs does not moot the case by simply stating she is not following the press release.
“So what you are saying is voter registrars can accept online registration,” Haynes said. “So this case is kind of irrelevant because they can accept it. That doesn’t seem consistent with what the prior secretary of state said and this one seems to be living with or she would have withdrawn it.”
Frederick conceded the statute is silent on the signature question, but he said he does not agree registrars can accept online registrations. “I think the fact is Texas does not provide for online voter registration," he said. "But the point relevant to the question here is that the secretary’s press release didn’t bind anyone. It was merely advice.”
“If she can’t stop them, why don’t they just go back to accepting online voter registration?” Haynes countered. “It’s not allowed but no one can do anything about it, that’s what you are essentially saying.”
Frederick said the main point is voter registration is handled by county registrars and that’s all that needs to be established to dismiss the case on sovereign immunity grounds.
Representing the Texas Democratic Party, Uzoma Nkwonta, with the Washington office of Perkins Coie, said the former secretary did not limit himself to issuing a press release, he also told county registrars not to accept applications with digital signatures and asked them to tell voters their applications were incomplete.
“Because of that, [Hughs] is directly connected to enforcement of the wet-signature rule. Whether the wet-signature rule arises from her instructions alone or whether it’s mandated by Texas law,” Nkwonta said.
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