5th Circuit Hears Oral Argument in Texas “Wet Signature” Lawsuit

WASHINGTON, D.C. — On Monday, March 6, the 5th U.S. Circuit Court of Appeals heard oral argument in Vote.org v. Callanen, a lawsuit challenging Texas’ “wet signature” law, which requires individuals who submit their voter registration applications electronically or through fax to also submit a physical copy of their application containing their original signature (signed with pen on paper) to their county registrar.

In June 2022, a federal district court judge ruled in favor of the plaintiff, Vote.org, and permanently blocked the challenged law for violating the First and 14th Amendments and the Materiality Provision of the Civil Rights Act of 1964, which protects voters from disenfranchisement on the basis of “an error or omission” that “is not material in determining whether such individual is qualified” to vote.

Following this major victory for Texas voters, the Republican actors who intervened in the lawsuit appealed this pro-voting decision to the 5th Circuit, which paused the lower court’s decision pending appeal. This means that the challenged law is currently in effect pending further action by the 5th Circuit. 

The parties involved in today’s oral argument include the following:

  • Appellants: Texas Attorney General Ken Paxton (R) and two county officials. These anti-voting parties argue that the lower court’s decision should be reversed and that the challenged wet signature law should remain in effect. 
  • Appellee: Vote.org. This pro-voting organization, which focuses on voter registration, brought the lawsuit against the wet signature law and argues that the 5th Circuit should affirm the lower court’s decision and permanently block the challenged law.
  • U.S. Department of Justice (DOJ): The DOJ submitted an amicus brief in the 5th Circuit in support of Vote.org; later on, the court granted the DOJ permission to participate in oral argument in order to support its pro-voting position that the lower court’s decision — specifically that the challenged law contravenes the Materiality Provision — should be affirmed. 
  • Judges: The appeal was heard by a three-judge panel comprised of Judge Rhesa Barksdale (appointed by former President George H.W. Bush), Judge Leslie Southwick (appointed by former President George W. Bush) and Judge Stephen Higginson (appointed by former President Barack Obama).

The court heard from two separate attorneys for the appellants, one of whom represented Paxton and the other of whom represented the county officials. Together, these attorneys focused on two main arguments: 1) Vote.org lacks standing (meaning capacity to sue) because it is a third-party organization and, unlike a voter, is not impacted by the wet signature law and 2) Vote.org cannot bring claims under the Materiality Provision of the Civil Rights Act because the law does not create a private right of action. Regarding the first argument, Paxton’s attorney argued that Vote.org “lacks organizational standing because it hasn’t shown a concrete diversion of resources as a result of House Bill 3107…and Vote.org cannot bring claims on behalf of third-party voters who are not plaintiffs in this case.” In regards to the second argument, Paxton’s attorney contended that only the U.S. government can bring a claim under the Materiality Provision and that “even if a private party can bring a claim, that private party should not be a third party that doesn’t actually assert voting rights.” 

The attorney for the other appellants, the county officials, focused her arguments on why the wet signature law does not violate the Materiality Provision. In particular, the county officials’ attorney argued that the wet signature requirement is material to determining a voter’s registration in the state of Texas. To this, Judge Higginson responded: “Young people sign almost everything on the internet. They don’t have printers. Especially in big states like…Texas, where people just can’t drive to Kinkos easily…this is a very big impediment for a lot of people that might want to sign up and be a voter.” Nevertheless, the county officials’ attorney maintained that under the Materiality Provision, “the question is what is material under state law,” meaning that so long as Texas enacts a voting requirement, it must be relevant to a voter’s qualifications. To this line of argument, Higginson countered that the Materiality Provision was “designed specifically to tell states you can’t add irrelevancies” when determining who can or cannot vote, further noting that “you can’t add burdens that might target the older [or] the young.”

Next, the court heard from the attorney for the appellee, Vote.org, who refuted the state officials’ arguments regarding standing and the Materiality Provision. In response to the suggestion that Texas can make anything a material qualification under state law, Vote.org’s attorney argued that “Texas absolutely cannot do that. Congress anticipated this type of circular reasoning and in fact…imposed certain provisions within the Civil Rights Act to make sure that such reasoning” does not restrict the right to vote. The voter registration group’s attorney further argued that “denying someone the ability to register is just the same as denying them a ballot under the Civil Rights Act,” meaning that “you cannot reject the registration application simply because of an immaterial omission.” When asked by one of the judges how he knew that registration applications were being rejected under the challenged law, Vote.org’s attorney replied that the record contains “unrebutted testimony from county registrars” who rejected voter registration applications provided through Vote.org because of the lack of a wet signature.

Next, the court heard from the DOJ’s attorney, who specifically focused on arguments pertaining to the Materiality Provision. In particular, the DOJ’s attorney underscored that a private right of action indeed exists under the Materiality Provision that allows private individuals and organizations — not just the DOJ — to bring lawsuits under this statute. The DOJ’s attorney also specifically addressed why the challenged law violates the Materiality Provision, stating that the “record clearly showed that the wet signature rule, the requirement of a wet signature in particular, is not material to meeting any of those qualifications” to vote, including “residents’ age, citizenship status and not being a felon.” 

Finally, the court heard rebuttal from Paxton’s attorney, who reiterated his prior arguments that Vote.org lacks standing to sue over the law and there is also no private right of action to bring claims under the Civil Rights Act’s Materiality Provision. Notably, Texas is one of only eight states that does not offer online voter registration; nevertheless, Paxton’s attorney concluded that Texas offers “so many avenues” to register to vote.

Following oral argument, the three-judge panel of the 5th Circuit will weigh both sides’ arguments and ultimately issue a written decision on whether or not the wet signature law violates federal law and should be permanently blocked in line with the lower court’s decision. 

Read our Twitter thread covering the oral argument here.

Learn more about the case here.