WASHINGTON, D.C. — Last Friday, the 5th U.S. Circuit Court of Appeals issued a 2-1 opinion upholding Texas’ so-called “wet ink signature” law for voter registration, but affirming that private parties can sue under a consequential Civil Rights Act provision.
The voter registration rule at the center of the ruling requires Texans who submit their voter registration applications electronically or through fax to also submit a physical copy of their application containing their “original” pen-on-paper signature to their county registrar.
Friday’s opinion reverses a June 2022 district court decision blocking the law as a result of a federal lawsuit brought by Vote.org — the country’s largest nonpartisan voter registration technology platform.
In the district court’s 2022 ruling, a Trump-appointed judge held that Texas’ wet ink signature rule violated the First and 14th Amendments of the U.S. Constitution and the Materiality Provision of the Civil Rights Act of 1964. The Materiality Provision protects a voter from disenfranchisement on the basis of minor errors or omissions that are unrelated to determining whether the voter is qualified to vote.
Following the district court’s ruling, Republican officials who intervened in the lawsuit — including Texas Attorney General Ken Paxton (R) and two county officials — appealed to the 5th Circuit. In July 2022, the 5th Circuit granted the Republicans officials’ request to pause the district court’s decision, thereby reinstating the wet ink signature law as the appeal was being litigated.
At the March 2023 oral argument before a three-judge panel of the 5th Circuit, the U.S. Department of Justice (DOJ) participated on the side of Vote.org. In addition to urging the 5th Circuit to affirm the district court’s decision, the DOJ specifically focused on refuting the Republican appellants’ argument that only the U.S. attorney general — but not private groups — can bring claims under the Materiality Provision. In legal terms, this is known as a private right of action.
In today’s opinion reversing the district court’s decision, the majority — composed of two Republican-appointed judges — rejected the Republican officials’ assertion that no private right of action exists under the Materiality Provision. There is an “implied but established private right to sue [under the Materiality Provision],” the majority opinion concluded, noting that “[t]wo circuits have held that the Materiality Provision creates a private right.”
In particular, the opinion cited decisions from the 3rd and 11th U.S. Circuit Courts of Appeals addressing the private right of action issue. The majority opinion also flatly rebuffed an argument from Republican officials who proffered that proving a claim under the Materiality Provision requires showing proof of racial discrimination.
However, despite rejecting many of the appellants’ arguments, the 2-1 majority ultimately held that a wet ink signature is material to determining whether one is qualified to vote in Texas: “Texas’s justification that an original signature advances voter integrity is legitimate, is far more than tenuous, and, under the totality of the circumstances, makes such a signature a material requirement.”
In a dissenting opinion, Obama-appointed Judge Stephen Higginsion wrote that the “crux of the majority’s materiality analysis reduces to one sentence: ‘Texas says it is.’” Higginson pointed to the “undisputed fact” that Texas county registrars outwardly admitted that they do not use the original wet ink signature to determine a voter’s qualification to vote.
The dissent added that “Texas has no problem accepting registration applicants’ signatures in electronic form when completed at Texas Department of Public Safety offices” or in other areas outside of voter registration such as contracts, divorce decrees and property closings.
With Friday’s opinion leaving Texas’ wet ink signature rule still in place, Lone Star State voters will need to submit a copy of their original signature if they choose to vote electronically. Texas remains as one of only eight states that does not offer online voter registration.