Case: 20-50774 Document: 00515606369 Page: 1 Date Filed: 10/19/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 19, 2020
No. 20-50774 Lyle W. Cayce
Clerk
Doctor George Richardson; Rosalie Weisfeld;
MOVE Texas Civic Fund;
League of Women Voters of Texas;
Austin Justice Coalition;
Coalition of Texans with Disabilities,
Plaintiffs—Appellees,
versus
Texas Secretary of State, Ruth R. Hughs,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 5-19-CV-963
Before Higginbotham, Smith, and Oldham, Circuit Judges.
Jerry E. Smith, Circuit Judge:
The United States is a few days from the November 3, 2020, General
Election. Texas officials are preparing for a dramatic increase of mail-in
voting, driven by a global pandemic. 1 One of their many pressing concerns is
1
See, e.g., John Engel, ‘I’m worried’: Texas election officials prepare for record-
breaking mail-in voting, KXAN (Aug. 13, 2020), https://www.kxan.com/news/texas-
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to ensure the integrity of the ballot by adhering to the state’s election-security
procedures. And the importance of electoral vigilance rises with the increase
in the number of mail-in ballots, a form of voting in which “the potential and
reality of fraud is much greater . . . than with in-person voting.” Veasey v.
Abbott, 830 F.3d 216, 239 (5th Cir. 2016) (en banc). “Absentee ballots remain
the largest source of potential voter fraud . . . .” 2
In a well-intentioned but sweeping order issued less than two months
before the election, 3 however, the district court minimizes Texas’s interest
in preserving the integrity of its elections and takes it upon itself to rewrite
the Legislature’s mail-in ballot signature-verification and voter-notification
procedures. At a time when the need to ensure election security is at its
zenith, the district court orders that, if the Secretary of State does not adopt
its preferred procedures, election officials must stop altogether rejecting bal-
lots with mismatched signatures.
Because Texas’s strong interest in safeguarding the integrity of its
elections from voter fraud far outweighs any burden the state’s voting proce-
dures place on the right to vote, we stay the injunction pending appeal.
I.
Though it is not constitutionally required to do so, 4 Texas offers qual-
ifying citizens the option to vote by mail. See TEX. ELEC. CODE §§ 82.001–
politics/im-worried-texas-election-officials-prepare-for-record-breaking-mail-in-voting/.
2
Comm’n on Fed. Elections Reform, Building Confidence in U.S. Elections 46
(2005) (bipartisan commission).
3
Richardson v. Hughs, No. 5-19-CV-963, 2020 WL 5367216 (W.D. Tex. Sept. 8,
2020).
4
See McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807–08 (1969);
Tex. Democratic Party v. Abbott (“TDP-II”), No. 20-50407, 2020 U.S. App. LEXIS 32503,
at *32 (5th Cir. Oct. 14, 2020) (revised opinion) (published).
2
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004. 5 Specifically, the state extends the privilege to over-65 voters, the dis-
abled, and those either in jail or otherwise absent from their county on elec-
tion day. Id. To further its compelling interest in safeguarding the integrity
of the election process, Texas conditions the vote-by-mail privilege on com-
pliance with various safeguards. One of those, at issue here, is signature
verification.
To vote by mail, a voter must first apply for a mail-in ballot.
§ 84.001(a). The applicant must sign, § 84.001(b), and timely submit the
application by mail to the early voting clerk, § 84.001(d). A witness may sign
the application if the applicant cannot sign because of physical disability or
illiteracy. § 1.011(a). Once a voter applies and is deemed eligible to vote by
mail, the Early Voting Clerk must provide the balloting materials to the voter
by mail. §§ 86.001(b), 86.003(a). Included in those materials are the ballot,
ballot envelope, and carrier envelope. § 86.002(a).
After receiving those materials, a voter who wishes to cast a ballot
must fill out the ballot, seal the ballot envelope, place it in the carrier envel-
ope, § 86.005(c), and timely return it, § 86.007. Additionally, the voter must
sign 6 the certificate on the carrier envelope, § 86.005(c), which “certif[ies]
that the enclosed ballot expresses [the voter’s] wishes independent of any
dictation or undue persuasion by any person,” § 86.013(c).
The Early Voting Ballot Board (“EVBB”) is responsible for process-
ing the results of early voting. § 87.001. 7 The Early Voting Clerk may
5
All references to statutory sections in this opinion are to the Texas Election Code
as effective for the 2020 General Election.
6
As with the signature required for the initial application, a witness may sign if the
voter cannot sign for reason of physical disability or illiteracy. § 1.011(a).
7
The EVBB in each county has at least three members. § 87.002(a). In a general
election, the Code guarantees representation on the board to any political party with a
3
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appoint, in addition to the EVBB, a Signature Verification Committee
(“SVC”). § 87.027(a). 8 Upon receipt of the mail-in ballots, the Early Voting
Clerk must timely deliver the ballots to the SVC or, if no SVC is appointed,
to the EVBB. §§ 87.027(h), 87.021(2), 87.022–024. If no SVC is appointed,
the EVBB receives and reviews each ballot to determine whether to accept it.
§ 87.041(a).
Relevant here, the EVBB may accept a ballot “only if . . . neither the
voter’s signature on the ballot application nor the signature on the carrier
envelope certificate is determined to have been executed by a person other
than the voter, unless signed by a witness . . . .” § 87.041(b)(2). In making
that determination, the EVBB compares the two signatures and “may also
compare the signatures with any two or more signatures of the voter made
within the preceding six years and on file with the county clerk or voter regis-
trar.” § 87.041(e). If the EVBB determines that a ballot is not acceptable—
as a result of either the signature-verification procedure or another of
§ 87.041(b)’s requirements—the ballot is rejected, and the vote is not
counted. §§ 87.041(d), 87.043(c).
If the Early Voting Clerk appoints an SVC, the committee receives the
ballots and makes the signature-verification determination before delivering
the ballots to the EVBB. § 87.027(h)–(i). The SVC follows a similar, though
slightly more robust, procedure for verifying signatures than does the EVBB.
Compare § 87.027(i) with § 87.041(b)(2). The Code instructs the SVC to
nominee on the ballot. § 87.002(c). Members must swear an oath attesting that, among
other things, they “will work only in the presence of a member of a political party different
from [their] own” when ballots are present. § 87.006(a).
8
Although the appointment of an SVC typically is discretionary, the Early Voting
Clerk must appoint an SVC if he receives a timely written request from fifteen or more
voters. § 87.027(a–1). SVCs have at least five members. § 87.027(d). Like the EVBB, the
SVC must have representation that is politically diverse. Id.
4
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compare the two signatures on the ballot application and the carrier envelope
certificate “to determine whether the signatures are those of the voter.”
§ 87.027(i). It also permits the SVC to aid its determination by comparing
the two signatures with “any two or more signatures of the voter made within
the preceding six years and on file with the county clerk or voter registrar
. . . .” Id. A determination that the signatures do not belong to the voter
“must be made by a majority vote of the committee’s membership.” Id. 9
Once the SVC has made its signature-verification determinations, the
committee’s chair delivers the ballots to the EVBB. Id. The EVBB follows
the same procedures it otherwise would, except that it is bound by the SVC’s
determination that the signatures belong to the voter. § 87.027(j). Con-
versely, if the EVBB believes that the SVC erroneously determined that the
ballot failed the signature-verification procedure, it may reverse that deter-
mination by a majority vote and accept the ballot. Id. Thus, if either body
determines that the signatures belong to the voter, that determination is final,
and the ballot may not be rejected on that basis.
If the EVBB rejects a ballot, it must note the reason on the carrier
envelope. § 87.043(d). When its review is complete, the EVBB places the
rejected ballots into an envelope or envelopes, records the number of rejected
ballots in the envelope, and seals it. § 87.043(a). The EVBB then delivers
the rejected ballots to the general custodian of election records. § 87.043(c).
No later than ten days after the date of the election, the EVBB must
provide written notice of its rejection to the voter at the address on the ballot
application. § 87.0431(a). Not more than thirty days after the election, the
9
There is a small exception where the committee is comprised of twelve or more
members, in which case the clerk may designate subcommittees. § 87.027(l). If that
occurs, the signature-verification determination may be made by a majority vote of the
subcommittee, as distinguished from the larger body. Id.
5
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Early Voting Clerk must notify the attorney general of the EVBB’s rejections
and provide the attorney general with certified copies of the rejected voters’
carrier envelopes and corresponding ballot applications. § 87.0431(b)(3).
Though a voter must receive notice that his ballot was rejected, the Code
does not require an opportunity to challenge that decision. 10
II.
The plaintiffs challenged Texas’s absentee-ballot system in August
2019, suing the Secretary of State, Ruth Hughs; the Brazos County Elections
Administrator, Trudy Hancock; and the City of McAllen’s Secretary, Perla
Lara. The plaintiffs—a group comprised of two persons who had absentee
ballots rejected in previous elections and organizations involved in voter reg-
istration, education, outreach, and support—raised several claims. They
maintain that Texas’s signature-comparison and voter-notification proce-
dures violate (1) the Due Process Clause of the Fourteenth Amendment,
(2) the Equal Protection Clause of the Fourteenth Amendment, (3) the
Americans with Disabilities Act, and (4) the Rehabilitation Act of 1973.
The district court denied defendants’ motions to dismiss, and the
parties conducted discovery, which lasted until May 2020, after which both
sides moved for summary judgment. In August 2020, the district court
requested supplemental briefing regarding what relief it should provide if it
found for the plaintiffs on the merits.
Describing their proposal as a “narrowly tailored remedy,” the plain-
tiffs asked for an injunction requiring election officials to take various rapid
affirmative steps to provide notice to voters whose ballots have been rejected,
10
See § 87.127(a) (providing that “a county election officer . . . may petition a dis-
trict court for injunctive or other relief” if the officer “determines a ballot was incorrectly
rejected or accepted”).
6
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to loosen absentee voter-identification requirements, and to implement an
elaborate and expedited process for challenges by voters with rejected ballots.
If the court found that remedy to be “impossible, impractical, or overly bur-
densome,” it instead should enjoin officials from engaging in a signature-
comparison process at all.
The Secretary took several actions over recent months to facilitate the
ability of qualifying voters to vote by mail. She provided guidance to local
election officials, recommending that they notify voters of rejected ballots as
quickly as possible. She reminded election officials of how early they may
convene EVBBs. She also alerted local election officials that they may exam-
ine not only the signatures on a voter’s application and carrier envelope, but
also other signatures on file and made within the last six years. She published
a letter providing mail-in voters with guidance on how properly to complete
and send their ballots and giving notice of the signature-comparison process.
The district court granted the plaintiffs’ summary judgment motion
in part. In its detailed and lengthy memorandum opinion and order, the court
“focus[ed] its analysis only on certain Plaintiffs’ claims against” Secretary
Hughs, addressing only the due process and equal protection claims of Weis-
feld and the Coalition of Texans with Disabilities. Richardson, 2020 WL
5367216, at *5.
The district court issued an injunction adopting many of the plaintiffs’
proposed changes to Texas’s election procedures. See id. at *38–39. The
injunction contained three main provisions pertaining to the 2020 election.
Id. at *37–39. First, the court required the Secretary to issue an advisory,
within ten days, notifying local election officials of the injunction. Id. at *38.
The notification must inform them that rejecting ballots because of mis-
matching signatures is unconstitutional unless the officials take actions that
go beyond those required by state law. Id.
7
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Second, the district court gave the Secretary a menu of actions that
she must take. The Secretary must either issue an advisory to local election
officials requiring them to follow the court’s newly devised signature-
verification and voter-notification procedures, or else promulgate an advisory
requiring that officials cease rejecting ballots with mismatched signatures
altogether. See id.
Third, the court mandated that the Secretary take action against any
election officials who fail to comply with the district court’s newly minted
procedures. Id. at *39. Deeming those dictates “appropriate for the Novem-
ber 2020 elections,” the court stated that it would hold a hearing after the
election to consider imposing additional long-term election procedures.
Id. at *45.
On September 9, the Secretary filed a notice of appeal and a motion
requesting the district court to stay its order pending appeal. The district
court denied a stay on September 10. On September 11, the Secretary filed
in this court an emergency motion for a stay pending appeal. On Septem-
ber 11, this panel granted a temporary administrative stay in order to consider
the motion.
III.
“A stay is not a matter of right, even if irreparable injury might other-
wise result.” Tex. Democratic Party v. Abbott (“TDP-I”), 961 F.3d 389, 397
(5th Cir. 2020) (Smith, J.) (quoting Nken v. Holder, 556 U.S. 418, 433
(2009)). “Whether to grant a stay is committed to our discretion.” Id. (cit-
ing Thomas v. Bryant, 919 F.3d 298, 303 (5th Cir. 2019)). We assess
“(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
8
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lies.” Nken, 556 U.S. at 426. “The first two factors are the most critical.”
Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020) (per curiam). “The
proponent of a stay bears the burden of establishing its need.” Clinton v.
Jones, 520 U.S. 681, 708 (1997).
The Secretary is likely to succeed on the merits. At the very least, she
is likely to show that the district court erred in its analysis of plaintiffs’ claims.
As we recently noted in two election-related opinions ruling on motions for
stays pending appeal, because the Secretary is likely to succeed on one
ground, we need not address the others. 11 We therefore express no opinion
on the Secretary’s arguments concerning standing or whether sovereign
immunity bars the present suit against her. We do, however, examine
whether the district court’s remedy is barred by sovereign immunity.
A.
The Secretary contends that she is likely to succeed in showing that
Texas’s signature-verification procedures are constitutional. In particular,
she asserts that (1) those procedures do not implicate the plaintiffs’ due pro-
cess rights, (2) the Anderson/Burdick framework—as distinguished from
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)—provides the appropriate test
for the due process claims, and (3) the signature-verification procedures
withstand scrutiny under Anderson/Burdick. The Secretary will likely prevail
on each point.
1.
We must first determine whether the plaintiffs have alleged any cog-
11
See Tex. League of United Latin Am. Citizens v. Hughs (“Tex. LULAC”),
No. 20-50867, 2020 WL 6023310, at *4 (5th Cir. Oct. 12, 2020) (published); Tex. All. for
Retired Ams. v. Hughs, No. 20-40643, 2020 WL 5816887, at *2 (5th Cir. Sept. 30, 2020)
(published).
9
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nizable interests that warrant due process analysis. 12 They have not.
The plaintiffs bring procedural due process claims,13 which require
two inquiries: (1) “whether there exists a liberty or property interest which
has been interfered with by the State” and (2) “whether the procedures
attendant upon that deprivation were constitutionally sufficient.” Kentucky
Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). Because the plaintiffs
“invoke [the Due Process Clause’s] procedural protection,” they had the
burden in the district court of establishing a cognizable liberty or property
interest. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 14
The Fourteenth Amendment says that states may not “deprive any
person of life, liberty, or property, without due process of law.” In its
conscientious 103-page order, the district court didn’t cite the Fourteenth
Amendment—the sole constitutional provision it purported to interpret on
the merits—even once. It’s no surprise, then, that the court also failed to
identify the category of interest—life, liberty, or property—at stake in the
12
The Secretary asserts in a heading that “Texas’s signature verification laws [do
not] implicate . . . the right to vote,” but she does not provide any precedent suggesting
that the plaintiffs have failed to make out an equal protection claim. This is likely because
the Supreme Court has recognized that many of its election cases have “appl[ied] the
‘fundamental rights’ strand of equal protection analysis” to voting restrictions. Anderson
v. Celebrezze, 460 U.S. 780, 786 n.7 (1983).
13
See Richardson, 2020 WL 5367216, at *3 (describing the plaintiffs’ demand for a
“pre-rejection notice and an opportunity to cure to voters whose ballots are rejected on the
basis of a perceived signature mismatch”). Although the district court avoided labeling
much of its due process analysis as “procedural,” it acknowledged that it applied the test
for a “procedural due process analysis.” Id. at *21 n.27.
14
Because she requests a stay, the Secretary has the burden to show that she is
likely to succeed on the merits. Clinton, 520 U.S. at 708. The district court, however,
granted summary judgment to the plaintiffs. Richardson, 2020 WL 5367216, at *46. Be-
cause we review summary judgments de novo, we must ask whether the Secretary is likely
to show that the plaintiffs failed to meet their burden on their summary judgment motions.
10
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right to vote. The plaintiffs’ brief is similarly silent. And this court has never
squarely addressed the issue. 15
It is important, however, to identify a cognizable interest under the
Due Process Clause, because we often dismiss due process claims where
plaintiffs fail to identify a cognizable interest 16 and because “[t]he types of
interests . . . for Fourteenth Amendment purposes are not unlimited.”
Thompson, 490 U.S. at 460. No protection of life is raised, so we examine
property and liberty interests.
a.
Property interests “are not created by the Constitution.” Bd. of
15
We have conducted due process analyses in two cases that involved voting. In
United States v. Atkins, 323 F.2d 733, 743 (5th Cir. 1963), we concluded that a state “could
not deprive a person of the right to register to vote on the basis of secret evidence” without
due process. In Williams v. Taylor, 677 F.2d 510, 515 (5th Cir. 1982), we applied the Eldridge
test to a felony-disenfranchisement statute, concluding that the due process claim was
“without merit.” Neither decision expressly concluded that the right to vote is a liberty or
property interest. In fact, in Williams we concluded that a felon’s “interest in retaining his
right to vote is constitutionally distinguishable from the ‘right to vote’ claims of individuals
who are not felons.” Id. at 514.
Because neither opinion squarely addressed voting as a cognizable due process
interest, the rule of orderliness does not require us to conclude that voting constitutes a
cognizable due process interest. Thomas v. Tex. Dep’t of Criminal Justice, 297 F.3d 361, 370
n.11 (5th Cir. 2002) (“Where an opinion fails to address a question squarely, we will not
treat it as binding precedent.”). Even if our previous decision “implicitly” relied on the
presence of a cognizable interest, that assumption is not binding if the adverse party “did
not challenge” and “we did not consider” that issue. Id. To the extent that “[w]e have
yet to definitively decide whether, pursuant to our rule of orderliness, a panel is bound by
a prior panel’s holding if the prior panel did not consider or address a potentially dispositive
argument made before the later panel,” we still address the Secretary’s argument in order
to determine her likelihood of success on the merits. See United States v. Juarez-Martinez,
738 F. App’x 823, 825 (5th Cir. 2018).
16
See, e.g., Nutall v. Maye, 515 F. App’x 252, 254 (5th Cir. 2012) (per curiam); Gant
v. Riter, 182 F. App’x 348 (5th Cir. 2006) (per curiam).
11
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Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Instead, they “are
created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.” Id. For instance,
courts sometimes consider welfare payments and continued employment to
be property interests. Id. at 578.
We have found no court that has held that the right to vote—much
less the alleged right to vote by mail—is a property interest. 17 Neither the
plaintiffs nor the district court expressly asserts that the right to vote is a
property interest. 18 In fact, the complaint omits the word “property” when
quoting the Fourteenth Amendment. Given the absence of argument or
precedent on point, the Secretary is likely to show that plaintiffs alleged no
cognizable property interest.
b.
Several district courts have concluded that the right to vote is a liberty
interest. See, e.g., Raetzel, 762 F. Supp. at 1357. Liberty interests arise from
either “the Constitution itself, by reason of guarantees implicit in the word
liberty,” or from “an expectation or interest created by state laws or poli-
cies.” Wilkinson, 545 U.S. at 221 (internal quotation marks omitted).
17
Courts instead refer to the right to vote as a “liberty interest.” Raetzel v.
Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990) (cleaned up).
18
The plaintiffs say that in Atkins, 323 F.2d at 743, we referred to the right to vote
as a “private interest.” Atkins described a formulation of a due process test, which pre-
dated Eldridge and examined the “private interest” at issue. Atkins, 323 F.2d at 743. Atkins
described voting as an “important and powerful privilege[],” not as a property interest. Id.
Likewise, the plaintiffs’ citations to various cases noting the importance of voting under
Eldridge are also inapposite. See, e.g., Williams, 677 F.2d at 514–15. Though those cases
reiterate the importance of the right to vote, none purports to determine whether the right
to vote constitutes a cognizable property interest under the Due Process Clause.
See, e.g., id.
12
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Liberty interests that arise from the Constitution extend beyond
“freedom from bodily restraint.” Roth, 408 U.S. at 572. They also include
the right to contract, to engage in “the common occupations of life,” to gain
“useful knowledge,” to marry and establish a home to bring up children, to
worship God, and to enjoy “those privileges long recognized . . . as essential
to the orderly pursuit of happiness of free men.” Id. On the other hand,
state-created liberty interests are “generally limited to freedom from re-
straint . . . .” Sandin v. Conner, 515 U.S. 472, 484 (1995). 19 This is “a narrow
category of state-created liberty interests.” Jordan v. Fisher, 823 F.3d 805,
810 (5th Cir. 2016). The plaintiffs cite no circuit precedent suggesting that
state-created liberty interests exist outside the context of bodily confinement.
There are two problems with describing the right to vote as a liberty
interest. First, the district court styled it as a state-created interest, conclud-
ing that, because “Texas has created a mail-in ballot regime,” it must now
provide “due process protections.” Richardson, 2020 WL 5367216, at *21. 20
But precedent demonstrates that state-created liberty interests are limited to
particular sorts of freedom from restraint. Sandin, 515 U.S. at 484. And the
plaintiffs cite no binding authority indicating that state-created liberty inter-
ests exist outside the context of bodily confinement. Thus, the Secretary is
likely to show that voting does not implicate any state-created liberty interest
under the Due Process Clause.
Second, setting aside the district court’s treatment of the right at
19
For instance, there is a liberty interest in “avoiding withdrawal of [a] state-
created system of good-time credits.” Wilkinson, 545 U.S. at 221.
20
Verifying its reliance on a state-created liberty interest, the district court relied
on Paul v. Davis, 424 U.S. 693 (1976)—particularly its examination of interests that are
“initially recognized and protected by state law.” Richardson, 2020 WL 5367216, at *20
(quoting Paul, 424 U.S. at 710).
13
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stake, it might seem intuitive, as the plaintiffs suggest, that the right to vote
is a liberty interest that arises from the Constitution. After all, the right to
vote is a fundamental constitutional right. McDonald, 394 U.S. at 807. But
that helps the plaintiffs with their equal protection claim, not their procedural
due process claim. 21 For procedural due process, the question is not whether
the plaintiffs assert a fundamental right, but instead whether the right they
assert is a liberty interest.
Besides describing the right to vote as fundamental, the plaintiffs have
not explained what there is about the right to vote that makes it a liberty
interest. The right to vote does not immediately resemble the rights de-
scribed in Roth, 408 U.S. at 572. The plaintiffs cite no circuit or Supreme
Court precedent extending the label of “liberty interest” to the right to vote.
The Sixth Circuit, the only circuit to squarely address this issue, 22 held that
the right to vote does not constitute a liberty interest. 23
21
See Memphis A. Phillip Randolph Inst. v. Hargett, No. 3:20-CV-374, 2020 WL
5095459, *11 (M.D. Tenn. Aug. 28, 2020) (“[T]he right to vote is fundamental, but it is
not a ‘liberty’ interest for purposes of procedural due process. . . .”), aff’d, No. 20-6046,
2020 WL 6074331 (6th Cir. Oct. 15, 2020) (published).
22
The Secretary cites Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970). Johnson con-
cluded that “the right to vote for a candidate for a state office achieved by state action . . .
is not a denial of a right of property or liberty secured by the due process clause.” Id. at 612
(cleaned up). Though Johnson squarely addressed the issue of cognizable liberty and prop-
erty interests, it focused solely on the right to vote in a state election, which Supreme Court
precedent at the time indicated was “not given by the Federal Constitution, or by any of its
amendments.” Pope v. Williams, 193 U.S. 621, 632 (1904), overruled by Dunn v. Blumstein,
405 U.S. 330 (1972). Some courts have conducted due process analyses based on the right
to vote but have done so without examining whether it constitutes a liberty interest. See,
e.g., Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008).
23
See League of Women Voters v. Brunner, 548 F.3d 463, 479 (6th Cir. 2008) (“That
Ohio’s voting system impinges on the fundamental right to vote does not, however,
implicate procedural due process . . . . [T]he League has not alleged a constitutionally pro-
tected interest.”); see also Memphis A. Phillip Randolph Inst., 2020 WL 5095459, at *11
(“[T]he right to vote is fundamental, but it is not a ‘liberty’ interest for purposes of proce-
14
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Though the plaintiffs will likely run into trouble in establishing that
the right to vote is a liberty interest, they will have even greater difficulty
showing that an alleged right to vote by mail constitutes a liberty interest. In
the context of an absentee ballot statutory scheme, “[i]t is thus not the right
to vote that is at stake here but a claimed right to receive absentee ballots.”
dural due process under Brunner or pertinent Supreme Court case law.”); Lecky v. Va. State
Bd. of Elections, 285 F. Supp. 3d 908, 918 (E.D. Va. 2018) (stating that “[p]laintiffs here
point to no authority actually supporting the existence of a procedural due process claim in
this context of election irregularities.”).
The Sixth Circuit recently affirmed—without deciding the issue of a cognizable
liberty interest—a district court that concluded there was no cognizable liberty interest at
stake in a due process challenge to signature-verification procedures. Memphis A. Philip
Randolph Inst. v. Hargett, No. 20-6046, 2020 WL 6074331 (6th Cir. Oct. 15, 2020). Judge
Moore dissented, claiming that the Sixth Circuit had previously established that state-
created liberty interests exist outside the context of bodily confinement any time “a state
places substantive limitations on official discretion.” Id. at *20 (Moore, J., dissenting)
(cleaned up) (quoting Tony L. By and Through Simpson v. Childers, 71 F.3d 1182, 1185 (6th
Cir. 1995)).
There are two problems with that analysis. First, the Sixth Circuit author-
ity that the dissent relied on concluded that there was no cognizable liberty interest at issue
in those cases. See Childers, 71 F.3d at 1186 (“The claim of a state-created liberty interest
fails.”); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993) (“The Ohio victim
impact law does not create a liberty interest.”). Although those cases contemplate extend-
ing state-created liberty interests beyond the context of bodily confinement, neither did so.
Thus, any persuasive value is diminished. If anything, the Sixth Circuit’s decision to
decline to extend the label of state-created liberty interest to situations outside the context
of bodily confinement demonstrates the tenuous nature of that extension of Supreme Court
precedent.
Second, both cases that the dissent cites rely on two Supreme Court decisions
addressing liberty interests in the context of bodily confinement for their “substantive
limitations on official discretion” standard. See Pusey, 11 F.3d at 656 (citing Thompson,
490 U.S. at 460, and Olim v. Wakinekona, 461 U.S. 238, 250 (1983)); Childers, 71 F.3d
at 1185 (citing Olim, 461 U.S. at 249, and Thompson, 490 U.S. at 462). By relying on pre-
cedent, in which the Court dealt only with cognizable interests in the context of bodily con-
finement, the Sixth Circuit was “flirting with . . . a novel alteration of [] constitutional
doctrine.” Alvarez v. City of Brownsville, 904 F.3d 382, 397 (5th Cir. 2018) (Ho, J., con-
curring), cert. denied, 139 S. Ct. 2690 (2019). We decline to adopt such an extension.
15
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No. 20-50774
McDonald, 394 U.S. at 807. It would “stretch[] the concept too far to suggest
that a person is deprived of liberty” when the Court has said that he has no
right to the object of his alleged liberty interest. Roth, 408 U.S. at 572
(cleaned up).
Given the failure of the plaintiffs and the district court to assert that
voting—or, for that matter, voting by mail—constitutes a liberty interest,
along with the absence of circuit precedent supporting that position, the
Secretary is likely to prevail in showing that the plaintiffs’ motion for sum-
mary judgment on their due process claim should have been denied.
c.
Finally, we reject the district court’s reasoning regarding any state-
created liberty interest. The court concluded that because “Texas has cre-
ated a mail-in ballot regime . . . the State must provide those voters with
constitutionally-sufficient due process protections before rejecting their
ballots.” Richardson, 2020 WL 5367216, at *21. That notion originated in
Raetzel, in which the District of Arizona acknowledged that absentee voting
“is a privilege and a convenience,” and yet concluded—without citation—
“[y]et, such a privilege is deserving of due process.” Raetzel, 762 F. Supp.
at 1358. In its defense, Raetzel’s reasoning resembles the principle animating
Goss v. Lopez, 419 U.S. 565 (1975). Goss concluded that, “[h]aving chosen to
extend the right to an education to people of appellees’ class generally, Ohio
may not withdraw that right on grounds of misconduct, absent fundamentally
fair procedures . . . .” Goss, 419 U.S. at 574. Although several district courts
have regurgitated Raetzel’s reasoning, 24 the plaintiffs and the district court
24
See Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018); Martin v. Kemp,
341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec’y of
State of Georgia, 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018); Zessar v.
Helander, No. 05 C 1917, 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006); Frederick v.
16
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No. 20-50774
point to no circuit court that has embraced it.
And properly so. There is a problem with grafting Goss’s reasoning
onto the voting context: Goss found two cognizable due process interests,
namely a “property interest in educational benefits” and a “liberty interest
in reputation.” Goss, 419 U.S. at 576. In context, Goss’s language about the
state’s “[h]aving chosen to extend” benefits and being thus bound by due
process came from its analysis of a “protected property interest.” Id. at 579
(emphasis added). Raetzel, however, concluded that “the right to vote is a
‘liberty’ interest.” Raetzel, 762 F. Supp. at 1357 (emphasis added). Thus,
Raetzel grafted the Supreme Court’s reasoning concerning property interests
onto a claimed liberty interest without providing any authority justifying that
extension. We decline to adopt Raetzel’s extrapolation of Supreme Court
precedent.
The Secretary is likely to show that the plaintiffs have alleged no cog-
nizable liberty or property interest that could serve to make out a procedural
due process claim. The Secretary is therefore likely to succeed in the dis-
missal of plaintiffs’ due process claims.
2.
Even supposing that voting is a protected liberty or property interest,
the Secretary is likely to show that the district court used the wrong test for
the due process claim. The court applied Eldridge, 424 U.S. at 335, which
provides the “general[]” test for determining what process is due. 25 On the
Lawson, No. 119CV01959SEBMJD, 2020 WL 4882696, at *12 (S.D. Ind. Aug. 20, 2020).
25
Under Eldridge, 424 U.S. at 335, “identification of the specific dictates of due
process generally requires” a court to consider three factors: (1) “the private interest that
will be affected by the official action,” (2) “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or sub-
stitute procedural safeguards,” and (3) “the Government’s interest, including the function
17
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No. 20-50774
other hand, Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi, 504 U.S. 428 (1992) announce a test to address “[c]onstitutional
challenges to specific provisions of a State’s election laws” under “the First
and Fourteenth Amendments.” Anderson, 460 U.S. at 789. 26 Neither Ander-
son nor Burdick, however, dealt with procedural due process claims, and both
instead based their approach on the “fundamental rights strand of equal pro-
tection analysis.” Id. at 787 n.7 (cleaned up).
For several reasons, the Anderson/Burdick framework provides the
appropriate test for the plaintiffs’ due process claims. First, because the
plaintiffs challenge Texas’s election laws under the Due Process Clause of
the Fourteenth Amendment, Richardson, 2020 WL 5367216, at *19, we must
use the test that the Supreme Court prescribed for “[c]onstitutional chal-
lenges to specific provisions of a State’s election laws” under “the First and
Fourteenth Amendments,” Anderson, 460 U.S. at 789. As several Justices
have noted, “[t]o evaluate a law respecting the right to vote—whether it
governs voter qualifications, candidate selection, or the voting process—we use
the approach set out in Burdick v. Takushi.” Crawford, 553 U.S. at 204 (Sca-
lia, J., concurring) (emphasis added). The district court concluded otherwise
only by relying on its own word associations—with abstract concepts such as
“procedures” and “procedural safeguards,” Richardson, 2020 WL 5367216,
at *20—and ignoring the Supreme Court’s command that lower courts
involved and the fiscal and administrative burdens that the additional or substitute pro-
cedural requirement would entail.”
26
The so-called Anderson/Burdick framework requires a “two-track approach.”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring). If a
court deems a voting law to be a “severe” burden on the rights of voters, “the regulation
must be narrowly drawn to advance a state interest of compelling importance.” Burdick,
504 U.S. at 434 (cleaned up). Conversely, if a court deems a voting law to be a “reasonable,
nondiscriminatory restriction[]” on the rights of voters, “the State’s important regulatory
interests are generally sufficient to justify the restrictions.” Id. (cleaned up).
18
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“considering a [Fourteenth Amendment] challenge to a state election law
must” apply the Anderson/Burdick framework, Burdick, 504 U.S. at 434
(emphasis added).
Second, our sister circuits—some of which neglected to examine
whether voting constitutes a cognizable liberty or property interest—apply
Anderson/Burdick to all Fourteenth Amendment challenges to election
laws. 27 Although several district courts have applied Eldridge to due process
challenges of signature-comparison procedures, none of those courts pro-
vided reasoning for its selection of the Eldridge test. 28 Moreover, two of those
opinions cite Burdick in their due process analyses, 29 and one—though still
applying Eldridge—even agreed that Anderson/Burdick applies to “all First
and Fourteenth Amendment challenges to state election laws.” Frederick,
2020 WL 4882696, at *16 (emphasis added). 30
Third, even if, arguendo, we had carte blanche to decide which test
applies, the Anderson/Burdick approach is better suited to the context of elec-
ion laws than is the more general Eldridge test. “There must be a substantial
27
See, e.g., Weber v. Shelley, 347 F.3d 1101, 1105–07 (9th Cir. 2003) (analyzing a due
process challenge to a county’s use of touch screen voting systems under the Anderson/-
Burdick framework); Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012) (conclud-
ing that Anderson/Burdick serves as “a single standard for evaluating challenges to voting
restrictions”); Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019)
(concluding that Anderson/Burdick applies “to all First and Fourteenth Amendment chal-
lenges to state election laws”).
28
See Saucedo, 335 F. Supp. 3d at 214; Martin, 341 F. Supp. 3d at 1338; Zessar,
2006 WL 642646, at *7; Frederick, 2020 WL 4882696, at *12.
29
See Frederick, 2020 WL 4882696, at *12 (citing Burdick, 504 U.S. at 433); Zessar,
2006 WL 642646, at *7 (citing Burdick, 504 U.S. at 434)
30
In Williams, 677 F.2d 514, we applied the Eldridge test when examining a felony-
disenfranchisement statute. Williams, however, predated Anderson and Burdick and was
abrogated by their laying out a more specific test for election laws.
19
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No. 20-50774
regulation of elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic processes.” Storer
v. Brown, 415 U.S. 724, 730 (1974). And “it is the state legislature—not . . .
federal judges—that is authorized to establish the rules that govern”
elections. 31
The flaw in using Eldridge is that election laws, by nature, “inevitably
affect[] . . . the individual’s right to vote.” Anderson, 460 U.S. at 788. Under
Eldridge, however, courts may accord the private interest at stake, namely the
right to vote, “significant weight.” Richardson, 2020 WL 5367216, at *21.
Therefore, the Eldridge test would inevitably result in courts’ “weigh[ing]
the pros and cons of various balloting systems,” Weber, 347 F.3d at 1107,
thereby “t[ying] the hands of States seeking to assure that elections are oper-
ated equitably and efficiently,” Burdick, 504 U.S. at 433. Unlike Eldridge, the
Anderson/Burdick approach recognizes that “the state’s important regula-
tory interests are generally sufficient to justify reasonable, nondiscriminatory
restrictions.” Anderson, 460 U.S. at 788. Because Anderson/Burdick—unlike
Eldridge—appropriately accounts for the state’s interest in regulating voting,
it provides the appropriate test for procedural due process claims challenging
election laws.
By using Eldridge, the district court’s “judicial supervision of the
election process . . . flout[s] the Constitution’s express commitment of the
task to the States.” Crawford, 553 U.S. at 208 (Scalia, J., concurring) (citing
U.S. Const. art. I, § 4). The Secretary is thus likely to show that the dis-
31
Tex. LULAC, 2020 WL 6023310, at *10 (Ho, J., concurring); see also U.S.
Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature thereof . . . .”);
Weber, 347 F.3d at 1107 (“[I]t is the job of democratically-elected representatives to weigh
the pros and cons of various balloting systems.”).
20
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No. 20-50774
trict court applied the wrong test in analyzing the due process claims.
3.
The Secretary contends that Texas’s signature-verification proce-
dures withstand scrutiny under Anderson/Burdick. The parties appear to
agree that Anderson/Burdick provides the appropriate framework to analyze
the equal protection claims, and we have concluded that it is also the appro-
priate test to analyze the due process claims if the plaintiffs are able to prove
a cognizable liberty or property interest. We thus analyze the equal protec-
tion and due process claims together. 32
The Anderson/Burdick rubric requires us to examine two aspects of
Texas’s signature verification procedures: (1) whether the process poses a
“severe” or instead a “reasonable, nondiscriminatory” restriction on the
right to vote and (2) whether the state’s interest justifies the restriction. Bur-
dick, 504 U.S. at 434 (cleaned up). Texas’s signature-verification procedures
are reasonable and nondiscriminatory, and they survive scrutiny under
Anderson/Burdick.
a.
The plaintiffs and the district court reason that Texas’s signature-
verification procedures impose a severe burden on the right to vote, because
“voters who have their ballots rejected due to a perceived signature mis-
32
The due process and equal protection claims challenge separate aspects of
Texas’s signature-verification procedures. The due process claims challenge the lack of
notice and opportunity to cure after a ballot has already been rejected by the signature-
verification procedures, but the equal protection claims focus on the existence and imple-
mentation of the signature-verification procedures. Though these differences could poten-
tially warrant separate Anderson/Burdick analyses, the district court applied “the same
analysis” to both claims. Richardson, 2020 WL 5367216, at *31. Neither party asks us to
conduct separate Anderson/Burdick analyses. Given the lack of argument on point, we
conduct a single Anderson/Burdick analysis.
21
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No. 20-50774
match are provided untimely notice of rejection and no meaningful oppor-
tunity to cure.” Richardson, 2020 WL 5367216, at *33 (emphasis omitted).
Consequently, the argument goes, these voters “face complete disenfran-
chisement.” Id. This theory stems from two fundamental errors: It (1) mis-
takenly focuses only on the burden to the plaintiffs—instead of voters as a
whole—and (2) neglects meaningfully to analyze binding precedent con-
cerning what constitutes a “severe” burden on the right to vote.
First, the district court concluded that Texas’s signature-verification
procedures constitute “a ‘severe’ burden on certain voters’ right to vote.”
Id. at *34 (emphasis added). But the severity analysis is not limited to the
impact that a law has on a small number of voters. For instance, Crawford’s
three concurring Justices concluded that “our precedents refute the view
that individual impacts are relevant to determining the severity of the bur-
den” that a voting law imposes. Crawford, 553 U.S. at 205 (Scalia, J., con-
curring). Though Crawford’s three-Justice plurality did not go as far as the
three-Justice concurrence, it too examined the burden on “most voters.”
Id. at 198.
Examining burdens on a plaintiff-by-plaintiff basis “would effectively
turn back decades of equal-protection jurisprudence.” Id. at 207 (Scalia, J.,
concurring). Specifically, the district court’s individualized assessment of
burdens ignores Burdick—the very case that it purports to apply. For in-
stance, in Burdick, 504 U.S. at 436−37, Hawaii’s ballot access laws did not
constitute a severe burden on the right to vote when any burden was borne
“only by those who fail to identify their candidate of choice until days before
the primary.” In fact, the Burdick dissenters—whose views did not carry the
day—asserted that the law’s impact on only “some individual voters” could
22
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No. 20-50774
constitute a severe burden. Id. at 448 (Kennedy, J., dissenting). 33 Thus, if
we were “[t]o deem ordinary and widespread burdens like these severe”
based solely on their impact on a small number of voters, we “would subject
virtually every electoral regulation to strict scrutiny, hamper the ability of
States to run efficient and equitable elections, and compel federal courts to
rewrite state electoral codes.” Clingman v. Beaver, 544 U.S. 581, 593 (2005).
Second, the plaintiffs and the district court neglect meaningfully to
analyze binding precedent concerning what constitutes a “severe” burden
on the right to vote. Crawford concluded that a photo-identification require-
ment was not a severe burden, even where “a somewhat heavier burden may
be placed on a limited number of persons.” Crawford, 553 U.S. at 199. But
these burdens were “neither so serious nor so frequent as to raise any ques-
tion about the constitutionality” of the requirement. Id. at 197.
Signature-verification requirements, like photo-ID requirements,
help to ensure the veracity of a ballot by “identifying eligible voters.” Id.
Signature-verification requirements are even less burdensome than photo-ID
requirements, as they do not require a voter “to secure . . . or to assemble”
any documentation. Id. at 199. True, some voters may have difficulty signing
their names on ballots. But in Crawford, even though some voters might find
it “difficult either to secure a copy of their birth certificate or to assemble the
other required documentation to obtain a state-issued identification,” that
33
The Court’s generalized approach in measuring the severity of burdens makes
sense. If we were to find that a burden is severe based solely on a plaintiff’s assertion that
he or she might be disenfranchised, our Fourteenth Amendment analysis of voting laws
would risk collapsing into a standing analysis: So long as a plaintiff could prove an injury,
that plaintiff would also be able to prove a severe burden under Anderson/Burdick. Such
reasoning flouts Anderson’s conclusion, 460 U.S. at 788, that “the state’s important regu-
latory interests are generally sufficient to justify reasonable, nondiscriminatory [voting]
restrictions.”
23
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difficulty did not render the photo-ID law a severe burden on the right to
vote. Id.
Even if some voters have trouble duplicating their signatures, that
problem is “neither so serious nor so frequent as to raise any question about
the constitutionality” of the signature-verification requirement. Crawford,
553 U.S. at 197–98. “[N]o citizen has a Fourteenth . . . Amendment right to
be free from the usual burdens of voting.” Veasey, 830 F.3d at 316 (Jones, J.,
concurring) (cleaned up). And “mail-in ballot rules that merely make casting
a ballot more inconvenient for some voters are not constitutionally suspect.”
Tex. LULAC, 2020 WL 6023310, at *6.
Moreover, Texas mitigates the burden of its signature-verification
requirement in three ways. First, for those who sign ballots, the Secretary
has issued notice of the signature-comparison process and guidance on how
to complete a ballot properly. Richardson, 2020 WL 5367216, at *45. Second,
for those who cannot sign a ballot “because of a physical disability or illiter-
acy,” § 1.011(a), Texas prohibits rejection of a ballot for failed signature veri-
fication if the ballot is signed by a witness, § 87.041(b)(2). Third, for those
who cannot sign a ballot or who are concerned that they will be unable to
provide a matching signature, Texas provides in-person voting. 34 “In Texas,
in-person voting is the rule . . . [and] voting by mail is the exception.” Tex.
Democratic Party v. Abbott (“TDP-II”), No. 20-50407, 2020 U.S. App.
LEXIS 32503, at *1 (5th Cir. Oct. 14, 2020) (published) (citation omitted).
Because Texas’s signature-verification requirement is no more bur-
34
Absentee-voting statutes, “which are designed to make voting more available to
some groups who cannot easily get to the polls, do not themselves deny [voters] the exercise
of the franchise.” McDonald, 394 U.S. at 807–08. As the district court rightly acknowl-
edges, “in-person voting . . . could be used by many voters to avoid disenfranchisement.”
Richardson, 2020 WL 5367216, at *28.
24
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No. 20-50774
densome on the right to vote than was the photo-ID mandate in Crawford, it
does not constitute a severe burden. Instead, the signature-verification re-
quirement is a “reasonable, nondiscriminatory restriction[]” on the right to
vote. Burdick, 504 U.S. at 434.
The district court, however, concluded that the signature-verification
procedures constitute a severe burden because they provide “untimely
notice of rejection and no meaningful opportunity to cure.” Richardson, 2020
WL 5367216, at *33. Texas could remedy that transgression, the court pos-
ited, if its mechanism for screening ballots “imposed no risk of uncorrectable
rejection.” Id. at *33 n.41. But the court failed to specify how a dearth of
opportunities to cure transmogrifies Texas’s signature-verification require-
ment into a severe burden. Similarly, the court did not cite any precedent
suggesting that “no risk” of uncorrectable rejection is a constitutionally man-
dated standard for verifying ballots. 35 Nor could it.
Indeed, the Constitution does not demand such a toothless approach
to stymying voter fraud. We have found no “authority suggesting that a State
must afford every voter . . . infallible ways to vote.” Tex. LULAC, 2020 WL
6023310, at *6. For instance, Crawford upheld a photo-ID law even though a
voter might be unable to cast a ballot on election day because he “may lose
his photo identification, may have his wallet stolen on the way to the polls, or
may not resemble the photo in the identification because he recently grew a
beard.” Crawford, 553 U.S. at 197. The risk that a voter might be unable to
35
The district court also sought to determine whether Texas’s signature verifica-
tion procedures were “an ‘inconvenience’ that would ‘not qualify as a substantial, burden
on the right to vote.’” Richardson, 2020 WL 5367216, at *33 n.41 (quoting Crawford,
553 U.S. at 199). But the court mischaracterizes Crawford, which never stated that mere
“inconvenience” was a constitutional standard. In fact, the Court recognized that voter-ID
laws impose a “somewhat heavier burden” on many voters, yet the Court concluded that
those laws are constitutional. Crawford, 553 U.S. at 199.
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cast his vote on account of this restriction did not constitute a severe burden.
Similarly, nowhere did Crawford mandate that Indiana provide voters with
notice and an opportunity to cure before they were turned away from the
polls. 36
In fact, in Crawford the Court noted less burdensome methods of iden-
tification, including a requirement that voters “sign their names so their sig-
natures can be compared with those on file.” Id. (emphasis added). The dissent
lauded as “significantly less restrictive” a voter-ID system in which a Florida
voter who lacks photo ID may cast, at the polling place, a provisional ballot
that will be counted if the state “determines that his signature matches the one
on his voter registration form.” Id. at 239 (emphasis added) (Breyer, J., dis-
senting). Nowhere did the dissent intimate that this “significantly less
restrictive” voter-ID system required notice or an opportunity to cure before
rejection. See id.
By concluding that Texas’s signature-verification requirement does
not constitute a severe burden—even without notice and an opportunity to
cure—we join the Ninth Circuit, which agrees that “the absence of notice
36
Three Justices in Crawford did note that, although a “heavier burden may be
placed on a limited number of persons . . . [t]he severity of that burden is, of course,
mitigated by the fact that, if eligible, voters without photo identification may cast provi-
sional ballots that will ultimately be counted” so long as the voter “travel[s] to the circuit
court clerk’s office within 10 days to execute the required affidavit.” Crawford, 553 U.S.
at 199. Those Justices, however, did not indicate that—absent this mitigating fact—the
burden would be severe.
Moreover, Texas—like Indiana in Crawford—provides an alternative method of
voting for those who do not believe they can provide the requisite signature: in-person
voting. True, some voters may be unable to make the trip to the polls. But similarly, some
voters in the Crawford situation might be unable to make the trip to the clerk’s office. That
inability of some voters to exercise the franchise, because they cannot comply with voting
restrictions, does not render otherwise reasonable voting restrictions constitutionally
infirm.
26
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and an opportunity to rehabilitate rejected signatures imposes only a minimal
burden on plaintiffs’ rights.” Lemons, 538 F.3d at 1104. This is so even
where “county elections officials do not notify voters after rejecting non-
matching signatures.” Id.
b.
We next determine whether “the State’s important regulatory inter-
ests are . . . sufficient to justify the restrictions,” and they generally are,
under Burdick, if the burden of the voting restriction is not severe. Burdick,
504 U.S. at 434 (cleaned up). We agree with the Secretary that Texas’s inter-
est in preventing voter fraud justifies its signature-verification requirement.
It is well established that the electoral process poses a risk of fraud.
See Voting for Am., Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013). “[N]ot
only is the risk of voter fraud real but . . . it could affect the outcome of a close
election.” Crawford, 553 U.S. at 196. Thus, “[w]hile the most effective
method of preventing election fraud may well be debatable, the propriety of
doing so is perfectly clear.” Id. Texas “indisputably has a compelling inter-
est in preserving the integrity of its election process.” Eu v. S.F. Cty. Demo-
cratic Cent. Comm., 489 U.S. 214, 231 (1989).
But Texas’s signature-verification requirement is not designed to sty-
mie voter fraud only in the abstract. It seeks to stop voter fraud where the
problem is most acute—in the context of mail-in voting. 37 “[T]he potential
and reality of fraud is much greater in the mail-in ballot context than with in-
person voting.” 38
37
See Tex. LULAC, 2020 WL 6023310, at *7 (“Texas has an important regulatory
interest in policing how its citizens’ votes are collected and counted. This interest is acute
when it comes to mail-in ballots.”) (cleaned up).
38
Veasey, 830 F.3d at 239; see also id. at 263 (describing voter fraud as “far more
27
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Texas’s important interest in reducing voter fraud—and specifically
in stymying mail-in ballot fraud—easily justifies its use of signature verifica-
tion. In concluding otherwise, the district court made at least two errors: It
(1) incorrectly suggested that Texas needed to provide evidence of voter
fraud and (2) erroneously imposed a narrow-tailoring requirement on the
state.
First, the district court deemed it relevant that “there is no evidence
prevalent” in the context of absentee ballots); Veasey v. Abbott, 888 F.3d 792, 815 n.13 (5th
Cir. 2018) (Graves, J., concurring) (describing “mail-in ballots” as “the area where, by
most accounts, [voter fraud] is more likely to occur . . . .”); Griffin v. Roupas, 385 F.3d 1128,
1130–31 (7th Cir. 2004) (“Voting fraud is a serious problem in U.S. elections generally . . .
and it is facilitated by absentee voting.”); Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d
366, 390 (9th Cir. 2016) (“[A]bsentee voting may be particularly susceptible to fraud, or at
least perceptions of it.”); John C. Fortier & Norman J. Ornstein, The Absentee Ballot and
the Secret Ballot: Challenges for Election Reform, 36 U. Mich. J.L. Reform 483, 513
(2003) (summarizing instances of “absentee ballots [that] were shown to be forged,
coerced, stolen from mailboxes, or fraudulently obtained” from Florida, Alabama, Con-
necticut, Indiana, New York, and Pennsylvania).
Courts have documented instances of voter fraud around the country, many of
which involve forgery of absentee ballots. See, e.g., Democratic Nat’l Comm. v. Hobbs,
948 F.3d 989, 1036 (9th Cir. 2020) (describing “the recent case of voter fraud in North
Carolina involving collection and forgery of absentee ballots by a political operative hired
by a Republican candidate”); Crawford, 553 U.S. at 225 (Souter, J., dissenting) (referring
to “absentee-ballot fraud, which (unlike in-person voter impersonation) is a documented
problem in Indiana”).
Texas is not immune from mail-in voter fraud. See The Heritage Foundation,
Election Fraud Cases, https://www.heritage.org/voterfraud-
print/search?combine=&state=TX&year=&case_type=All&fraud_type=24489 (last visit-
ed Sept. 30, 2020) (“Miguel Hernandez visited an elderly woman shortly before the 2017
Dallas City Council election, collected her blank absentee ballot, filled it out, and forged
her signature before mailing it back. Hernandez was the first person arrested as part of a
larger voter fraud investigation in the Dallas area, stemming from claims by elderly voters
that someone was forging their signatures and the return of nearly 700 mail-in ballots all
signed by the same witness using a fake name.”); id. (“Charles Nathan Jackson, of Tarrant
County, forged the name of a stranger, Mardene Hickerson, on an application for an early
voting ballot.”).
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in the record demonstrating that any mismatched-signature ballots were sub-
mitted fraudulently.” Richardson, 2020 WL 5367216, at *34 n.44. But we do
not force states to shoulder “the burden of demonstrating empirically the ob-
jective effects” of election laws. Munro v. Socialist Workers Party, 479 U.S.
189, 195 (1986). States may “respond to potential deficiencies in the electoral
process with foresight rather than reactively.” Id. at 195–96. States have
thus “never been required to justify [their] prophylactic measures to de-
crease occasions for vote fraud.” Tex. LULAC, 2020 WL 6023310, at *7.
For instance, in Crawford, although “[t]he record contain[ed] no evi-
dence of any such fraud actually occurring in Indiana at any time in its his-
tory,” the Court still concluded that “[t]here is no question about the
legitimacy or importance of the State’s interest in counting only the votes of
eligible voters.” Crawford, 553 U.S. at 194, 196. By intimating that Texas
ought to provide the court with evidence of voter fraud, the district court
ignored this court’s binding conclusion that “Texas need not show specific
local evidence of fraud in order to justify preventive measures.” Steen,
732 F.3d at 394.
Second, the district court misapplied the Anderson/Burdick method-
ology by erroneously imposing a narrow-tailoring requirement. Under Bur-
dick, 504 U.S. at 434, where a voting restriction imposes a severe burden, the
state must show (1) that there is “a state interest of compelling importance”
and (2) that the regulation is “narrowly drawn to advance” that interest. But
where the burden of an election law is reasonable—instead of severe—the
state must show only a “legitimate interest[]” that is “sufficient to outweigh
the limited burden” imposed by the regulation. Id. at 440.
The Anderson/Burdick framework does not impose a narrow-tailoring
requirement on the state when dealing with reasonable burdens. Id. The
Secretary satisfied her burden by proving that Texas’s interest in thwarting
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voter fraud justifies signature verification. The district court even suggested
as much. Richardson, 2020 WL 5367216, at *35.
But instead of accepting this important interest and weighing it against
the burden on the plaintiffs, the district court imposed an additional burden:
The Secretary must show that Texas’s interest in preventing voter fraud “is
furthered by utilizing signature comparison procedures that do not provide
voters with a meaningful opportunity to avoid disenfranchisement by curing an
improperly rejected ballot.” Id. at *29. According to the court, Texas failed in
this endeavor because there is “no rational basis for providing robust cure
procedures to voters who fail to show an ID when voting in person but not
those whose signatures are perceived to mismatch when voting by mail.” Id.
at *35.
The district court cited no authority for this added burden on the
Secretary. And for good reason.
In effect, the court required the Secretary to show that Texas could
not have fashioned its regulations in a less burdensome manner. When we
say that a state has not met its burden because we can imagine “less burden-
some regulatory options [that] were available,” we call that a “narrow tail-
oring requirement.” McConnell v. Fed. Election Comm’n, 540 U.S. 93, 316
(2003) (Kennedy, J., concurring in the judgment). But the Anderson/Burdick
framework imposes a narrow-tailoring requirement only on restrictions that
constitute severe burdens, not on reasonable voting restrictions. Burdick,
504 U.S. at 434. The district court thus misapplied Anderson/Burdick when
purporting to analyze reasonable restrictions on the right to vote. 39
39
The district court could have justified its narrow-tailoring requirement if it had
rested its opinion on its conclusion that Texas’s signature-verification procedures impose
a severe burden. But the court explicitly concluded that its imposition of this narrow-
tailoring requirement holds “irrespective of whether the burden is classified as ‘severe,’
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Texas’s important interest in preventing voter fraud in its mail-in
ballot system is sufficient to justify its reasonable restrictions on the right to
vote. The Secretary is likely to prove that the district court erred in granting
the plaintiffs’ summary judgment on the merits.
B.
The Secretary is likely to prevail in her defense that sovereign immun-
ity bars the district court’s injunction requiring that she issue particular
advisories and take specific potential enforcement action against non-
complying officials. Whether Ex parte Young, 209 U.S. 123 (1908), bars all
affirmative injunctions against an officer “is an unsettled question that has
roused significant debate.” Green Valley Special Util. Dist. v. City of Schertz,
969 F.3d 460, 472 n.21 (5th Cir. 2020) (en banc). We need not settle that
debate here. Although the question remains whether sovereign immunity
bars all affirmative injunctions, the present injunction is impermissible
because it would control the Secretary in her exercise of discretionary
functions.
In Young, 209 U.S. at 158, the Court stated that “[t]here is no doubt
that the court cannot control the exercise of the discretion of an officer.”
Analyzing the question whether sovereign immunity bars positive injunctions
against officers, the D.C. Circuit stated that “an attempt to control an offi-
cer” in the exercise of a discretionary function would violate sovereign im-
munity under Ex parte Young, and “would place the court on the wrong side
of the line thought to divide ‘discretionary’ from ‘ministerial’ functions.”
Vann v. Kempthorne, 534 F.3d 741, 753 (D.C. Cir. 2008) (citing Hagood v.
‘moderate,’ or even ‘slight.’” Richardson, 2020 WL 5367216, at *35. “Even assuming the
Secretary need only satisfy a ‘rational’ basis review . . . the Secretary still could not do so.”
Id. (emphasis omitted). The court applied a narrow-tailoring requirement to even rational
basis review and, in so doing, misapplied Anderson/Burdick.
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Southern, 117 U.S. 52, 69 (1886)).
The D.C. Circuit further examined the Supreme Court’s application
of sovereign immunity in Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam).
See Vann, 534 F.3d at 753. In Gordon, 373 U.S. at 58, the Court held that a
court could not require the Director of the Bureau of the Budget to withdraw
a report advising the federal government regarding which land the United
States should retain under the Hawaii Statehood Act. Such an order violated
sovereign immunity because it “would require the Director’s official affirma-
tive action.” Id. The D.C. Circuit explained that Gordon exemplifies “the
principle” that a court may not compel officers to take affirmative official
actions that are discretionary. Vann, 534 F.3d at 753.
We need not determine now whether affirmative injunctions are cate-
gorically barred by sovereign immunity. See Green Valley, 969 F.3d at 472
n.21. It is sufficient to note that, at the very minimum, a court may not “con-
trol [an officer] in the exercise of his discretion.” Young, 209 U.S. at 158.
The district court’s sweeping order requires that the Secretary take
several positive actions. In addition to requiring her to issue an advisory
notifying local election officials of the district court’s constitutional judgment
regarding the signature-mismatch laws, the order also gives the Secretary an
ultimatum. It provides that she either must issue an advisory stipulating the
detailed procedures that the district court imposed, or, alternatively, must
promulgate an advisory requiring that local officials refrain at all from reject-
ing ballots based on mismatched signatures. Richardson, 2020 WL 5367216,
at *38.
Section 31.003 states that the Secretary “shall obtain and maintain
uniformity in the application, operation, and interpretation of this code,” and
that in doing so she “shall prepare detailed and comprehensive written dir-
ectives and instructions” regarding Texas election laws. Because the statute
32
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uses the mandatory language of “shall,” § 31.003 imposes an affirmative duty
on the Secretary to maintain uniformity regarding the application and inter-
pretation of election laws. See Lightbourn v. Cty. of El Paso, 118 F.3d 421, 429
(5th Cir. 1997).
“If a statute, regulation, or policy leaves it to . . . [an] agency to deter-
mine when and how to take action, the agency is not bound to act in a partic-
ular manner and the exercise of its authority is discretionary.” St. Tammany
Par. ex rel. Davis v. FEMA, 556 F.3d 307, 323 (5th Cir. 2009). Though the
Secretary has a duty to maintain uniformity, § 31.003 leaves her considerable
discretion and latitude in how to do so. By prescribing detailed and specific
procedures that the Secretary must include in her advisory, the district court
impinges upon her discretionary authority in flat violation of Young.
The fact that the district court’s mandated procedures were offered
to the Secretary as one of two choices does not cure the order from infringing
on her discretion. To the contrary, the very fact that the order gave her an
ultimatum constitutes “an attempt to control the officer” and is, thus, plainly
forbidden under Young. See Vann, 534 F.3d at 753.
The injunction also stipulates that the Secretary must reprimand any
local officials who violate the district court’s procedures and must “correct
the offending conduct” per § 31.005. Richardson, 2020 WL 5367216, at *39.
Again, the order far exceeds the limits of Young. A “[r]eview of the provi-
sions of the Texas Election Code that refer to the Secretary’s role in elections
reveals that most give discretion to the Secretary to take some action.” Light-
bourn, 118 F.3d at 428–29. Interpreting § 31.005, we determined that the
Secretary has considerable discretion under that provision. Id. at 429.
Indeed, we observed that the law states that she “may take appropriate action
to protect the voting rights of the citizens . . . from abuse . . . .” Id. (quoting
§ 31.005(a)).
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The district court directs the Secretary to take action against non-
onforming election officials under § 31.005(b), a provision that specifies how
the Secretary can enforce the Code against violations of voting rights. As in
§ 31.005(a), the language in § 31.005(b) is discretionary, stipulating that the
Secretary “may order the person to correct the offending conduct.”
(Emphasis added.) “Provisions merely authorizing the Secretary to take
some action do not confer a legal duty on [her] to take the contemplated
action.” Lightbourn, 118 F.3d at 429.
Section 31.005 grants the Secretary discretion to take enforcement
actions, and the district court cannot, therefore, compel such actions under
Young. Thus, the Secretary is likely to prevail in her defense that the injunc-
tion is impermissible under Young. 40
IV.
The other factors also counsel in favor of granting a stay pending
appeal. As to whether the Secretary “will be irreparably injured absent a
stay,” Nken, 556 U.S. at 426, “[w]hen a statute is enjoined, the State nec-
essarily suffers the irreparable harm of denying the public interest in the en-
forcement of its laws,” Veasey, 870 F.3d at 391. And as to “where the public
40
The Secretary contends that the injunction exceeds the district court’s remedial
authority because it is not narrowly tailored, in violation of Federal Rule of Civil Procedure
65(d), and because it contravenes principles of federalism by requiring the Secretary and
other election officials to disobey Texas law. The plaintiffs respond that the injunction is
specific and narrow because the signature-matching procedure is implemented statewide
and, thus, requires a state-wide injunction. The plaintiffs also counter that the injunction
does not violate federalism principles because it merely brings the signature-comparison
procedures into alignment with constitutional requirements and gives the Secretary a
choice in how to revise the procedures. Because the Secretary is likely to prevail both in
her argument that the injunction violates Young and on the merits in defending the current
signature-matching procedures, we need not determine whether the injunction also ex-
ceeds the district court’s remedial authority.
34
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interest lies,” Nken, 556 U.S. at 426, when “the State is the appealing party,
its interest and harm merge with that of the public,” Veasey, 870 F.3d at 391.
Moreover, “a temporary stay here, while the court can consider argument on
the merits, will minimize confusion among both voters and trained election
officials—a goal patently within the public interest given the extremely fast-
approaching election date.” TDP-I, 961 F.3d at 412 (cleaned up).
Finally, as to “whether issuance of the stay will substantially injure
the other parties interested in the proceeding,” Nken, 556 U.S. at 426, to
whatever extent it might, it does not outweigh the other factors. “Our deci-
sion is limited to determining irreparable harm not in denying the plaintiffs’
requested relief outright but in temporarily staying the injunction pending a
full appeal.” TDP-I, 961 F.3d at 412. Because of the likelihood that the Sec-
retary will succeed on the merits, combined with the irreparable harm
inflicted on the state and its citizens by the injunction, the balance of harms
weighs in favor of the Secretary.
*****
The Secretary’s motion to stay the injunction pending appeal is
GRANTED. The injunction is STAYED in all its particulars pending fur-
ther order of this court. 41
41
We note that in Middleton v. Andino, No. 3:20-cv-01730-JMC, 2020 U.S. Dist.
LEXIS 171431, at *3 (D.S.C. Sept. 18, 2020), the district court issued a broad injunction
barring South Carolina, inter alia, from “the requirement that another individual must
witness a voter’s signature on an absentee ballot envelope for the ballot to be counted.”
The plaintiffs had made many of the same legal and factual arguments that are presented
here. The Supreme Court unanimously stayed the injunction pending appeal, Andino v.
Middleton, No. 20A55, 2020 U.S. LEXIS 4832 (U.S. Oct. 5, 2020), after the Fourth Circuit
had declined to do so, Middleton v. Andino, No. 20-2022, 2020 U.S. App. LEXIS 31093 (4th
Cir. Sept. 30, 2020) (en banc).
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Patrick E. Higginbotham, Circuit Judge, concurring in the stay:
In 1985, the Texas Legislature codified a revised state election code
that included §§ 87.041(b) & (d), the provisions from which Plaintiffs seek
relief. 1 Since codification, the Legislature has amended § 87.041(b) only
once, in 1987. 2 Section 87.041(d) has not been amended. And while the
Legislature has added to or amended other subsections of § 87.041 as recently
as 2017, Texas’s basic framework for verifying voter signatures has been in
place for several decades. Plaintiffs filed this suit in August 2019, reaching
this court a year later. We are asked to change those rules while voting in a
presidential election is under way—in the three weeks remaining before
Election Day. However federal courts might finally decide this case, it now
hangs a cloud over the election.
I concur only in the decision to stay pending appeal of the district
court’s injunction changing the election rules. The Secretary of State has
shown a substantial likelihood of success on the merits, and the district
court’s ruling has been stayed to allow this Court to decide the merits of the
case. Well enough, but the reality is that the ultimate legality of the present
system cannot be settled by the federal courts at this juncture when voting is
already underway, and any opinion on a motions panel is essentially written
in sand with no precedential value 3—its reach is to delay, not to finally decide
the validity of the state regulation. The Supreme Court has consistently
counseled against court-imposed changes to “election rules on the eve of an
1
1985 Tex. Sess. Law Serv. 211, § 1.
2
See 1987 Tex. Sess. Law Serv. 472, § 34.
3
Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988).
36
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election.” 4 Caution is particularly appropriate where, as here, the challenged
laws were in effect long before suit was filed.
I.
I would not attempt to settle our circuit’s law on such complex and
delicate questions in a preliminary ruling that has not benefitted from oral
argument or collegial discussions. And a decision by this motions panel
granting a stay settles no law. To the contrary, it has no precedential force
and is not binding on the merits panel, leaving it as a writing in water—made
the more empty by pretermitting the jurisdictional requisites of sovereignty
and the reach of Ex parte Young. The matter is yet to travel its ordinary course
to be settled by a fully considered opinion by the merits panel, perhaps then
by the en banc Court. This reality is brought home by the changing opinions
of my colleagues as the Court responds to legal challenges in the electoral
process as conflicting opinions in other circuits indicate. 5 Here, we proceed
without collegial conference on a motions panel and need not as a panel
traverse numerous paths and crossroads engaging significant issues whose
impact on our voting-rights jurisprudence remains contested, including
standing and the reach of Ex parte Young, core principles of federalism. To do
so would expose shifting views on these issues—a fluidity of view that
unwittingly would present this Court as a volunteer in a political fight. In my
view, the Secretary is a proper defendant under Ex parte Young. More to the
point, it is the controlling law in this circuit. In pretermitting rather than
accepting that reality, my colleagues cling to their view expressed last month
that the Secretary lacks the enforcing authority under state law necessary to
4
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020)
(per curiam).
5
See Memphis A. Philip Randolph Inst. v. Hargett, No. 20-6046, 2020 WL 6074331
(6th Cir. Oct. 15, 2020); id. at *9 (Moore, J., dissenting).
37
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a federal suit enjoining her enforcement of an assertedly unconstitutional
state statute 6 and casting doubt on whether the Court is bound by its recent
case law because that case law might yet be considered en banc. 7 This fluidity
counsels caution in wading into a change of election rules while voting is
underway in an election charged with distrust of the political process—at its
heart breeding doubt that one’s vote will count.
II.
In 2016 and 2018, “approximately 5,000 [Texas] ballots were rejected
on the basis of perceived signature mismatches.” 8 Such “small” differences
have the potential to decide both local and national elections. And with the
large increase in votes cast by mail in our ongoing pandemic that error rate
would toss out far greater numbers. There is much at stake here.
While Chief Justice Marshall’s observation that the federal courts
must decide is more than a truism, staying our hand is well within our
compass here as we are asked to draw upon our injunctive powers. These
must include an assessment of the real-world effect of when sought-for relief
is granted. Plainly, the risks of now ordering changes in rules in effect for
years would add to the uncertainties at every county seat across Texas, each
facing the counting of votes cast by mail swelled by the pandemic beyond all
past experience. There is yet another layer. A final decision from the judiciary
is unlikely before voting in this presidential election year is completed. Again,
6
See Tex. Democratic Party v. Hughs (TDP-I), No.20-50667, 2020 WL 5406369,
at*1 (5th Cir. Sept. 9, 2020).
7
Id.; see Tex. Democratic Party v. Abbott (TDP-II), No. 20 50407, 2020 WL 5422917,
at *5 (5th Cir. Sept. 10, 2020 ).
8
Richardson v. Tex. Sec’y of State, No. SA-19-CV-00963-OLG, 2020 WL 5367216,
at *30 (W.D. Tex. Sept. 8, 2020).
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it is now underway. Finally, while I cannot join Judge Smith’s opinion, I join
the grant of a stay for the reasons I here offer.
Relying on the old wisdom that looking to the path traveled can give
direction to the road ahead, we see that while the road of right to vote has at
times been nigh impassable as it rolled past people of color, women, and the
poor, it has in the long view tracked the expansion of civil rights, reflecting to
these eyes a maturation of individual liberty. Sometimes one step forward
with two steps back, but the arc has been its expansion with which partisans
ought make peace, accepting the bedrock principle that disenfranchising
citizens is not a fallback to a failure to persuade. It is a given both that states
must protect citizens’ fundamental right to vote, resisting in that effort
tempting cover for partisan objectives, and that their efforts remain
reviewable with the disinterest demanded by the architects of our
Constitution, insisting that judges of federal courts it would create be as
“independent as the lot of humanity will admit” 9—counsel wise and
prescient offered as it was before the arrival of political parties, a charge
implicit in the oath of us all whether modern day federalists or Jeffersonians.
9
Mass. Const., Declaration of Rights, art. 29 (1780).
39